Amicus Curiae Brief — Anderson v. Green

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OCTOBER TERM, 1994

ELOISE ANDERSON, individually and in her official capacity

as Director, California Department of Social Services,

CALIFORNIA DEPARTMENT OF SOCIAL SERVICES, and

RUSSELL S. GOULD, Director, California Department of

Finance, os

Petitioners,

—V—

DESHAWN GREEN, DEBBY VENTURELLA, and DIANA P.

BERTOLLT, on behalf of themselves and all others similarly

situated, Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE

NOW LEGAL DEFENSE AND EDUCATION FUND

(Additional Amici Listed on Inside Cover)

IN SUPPORT OF RESPONDENTS

MARTHA F. DAVIS

Counsel of Record

SUSAN J. KRAHAM

DEBORAH A. ELLIS

NOW LEGAL DEFENSE AND

EDUCATION FUND

99 Hudson Street, 12th Floor

New York, New York 10013

(212) 925-6635

Attorneys for Amici Curiae

ete. & cadet - tbe de tees 1 eae

AMERICAN MEDICAL WOMEN’S ASSOCIATION

AYUDA, INC.

CALIFORNIA WOMEN LAWYERS

EQUAL RIGHTS ADVOCATES

FAMILY VIOLENCE PROJECT OF THE LEGAL

ACTION CENTER FOR THE HOMELESS

NATIONAL BATTERED WOMEN’S LAW PROJECT

THE NATIONAL COUNCIL OF

NEGRO WOMEN, INC.

NATIONAL ORGANIZATION FOR WOMEN

NATIONAL WOMEN’S HEALTH NETWORK

NATIONAL WOMEN’S LAW CENTER

NORTHWEST WOMEN’S LAW CENTER

PLANNED PARENTHOOD FEDERATION

OF AMERICA, INC.

WOMEN LAWYERS ASSOCIATION

OF LOS ANGELES

WOMEN’S ECONOMIC AGENDA PROJECT

WOMEN’S LAW CENTER, INC.

WOMEN’S LAW PROJECT

WOMEN’S LEGAL DEFENSE FUND

YWCA OF THE U.S.A.

TABLE OF CONTENTS

Beem GP AUTRIUEED cc ccc ccc ere ccees lil

INTEREST OF AMICICURIAE ..............

SUMMARY OF ARGUMENT ................

DI Rhee eeWeebbecdocececcececc cs

I. BECAUSE THE CALIFORNIA STATUTE

CREATES A DURATIONAL RESIDENCY

REQUIREMENT THAT RESULTS IN

UNEQUAL TREATMENT OF RESIDENTS

BASED SOLELY ON THE LENGTH OF TIME

THEY HAVE LIVED IN CALIFORNIA, THE

STATUTE MUST BE SUBJECT TO STRICT

DUPUEPS ee E eb oéeeesesececcccc.

Il. BATTERED WOMEN WILL BE HARMED BY

THE DURATIONAL RESIDENCY

REQUIREMENT BECAUSE THEY

FREQUENTLY MUST FLEE ACROSS STATE

LINES TO PROTECT THEMSELVES AND

Debs ececesececsecccces

A. Because Separation Is The Most Dangerous

Time For Many Battered Women, Victims Of

Domestic Violence Often Must Cross State

DO PEE ccc ccccececcccccs

B. Having Made The Decision To Escape,

Victims of Domestic Violence Often Must

Seek Shelter And Support From Family

Members Who Live In Other States.......

Ill. THE CALIFORNIA DURATIONAL RESIDENCY

REQUIREMENT DETERS BATTERED

WOMEN’S EXERCISE OF THEIR RIGHT TO

WEEE: £0608 es 00665 OC Rb ERG OSE ° 15

A. The Residency Requirement Will Burden The

Right To Travel Of Battered Women Whose

Escape From Abuse Will Increase Their

Economic Need

B. Battered Women Often Are Economically

Dependent On Their Abusers And Thus Have

Substantial Economic Needs That Will Not Be

Met By Reduced AFDC Benefits

IV. A REDUCTION IN AFDC BENEFITS BASED

ON RESIDENCY WILL PENALIZE TRAVEL

AND PERPETUATE DOMESTIC VIOLENCE

BECAUSE ECONOMIC INDEPENDENCE IS

A SIGNIFICANT FACTOR IN BATTERED

WOMEN’S ABILITY TO ESCAPE AND

REMAIN SEPARATE FROM THEIR

Th ceccdsebewheweek beeucéce 22

CONCLUSION

APPENDIX I! Statements of Interest of Amici Curiae

TABLE OF AUTHORITIES

FEDERAL CASES

Attorney General of New York v. Soto Lopez,

) FS | 6 eee eee 4,5, 15

Godfrey v. Georgia, 446 U.S. 420 (1980) ........ 10

Green v. Anderson, 811 F. Supp. 516 (E.D. Cal. 1993),

aff'd, 26 F.3d 95 (9th Cir. 1994) ............ 3,5

Memorial Hospital v. Maricopa County, 415

ee ED as dg os 64 a 56 WN 06 6 6 0 14, 15, 25

Planned Parenthood of Southeastern Pennsylvania

v. Casey, 505 U.S. __, 112 S. Ct. 2791 (1992) . 7, 20, 23

Shapiro v. Thompson, 394 U.S. 618 (1969) .. 15, 16, 24

United States v. Guest, 383 U.S. 745 (1966) ....... 4

United States v. Jackson, 390 U.S. 570 (1968) ..... 16

Zobel v. Williams, 457 U.S. 55 (1982) ........... 5

STATE CASES

Pennsylvania v. Stonehouse, 521 Pa. 41, 555

DP cccuaeeeeeveseseevateesess ll

Kansas v. Hundley, 236 Kan. 461, 693 P.2d 475

a oes. Pek uae ake eeeees eee ee 10

Kansas v. Stewart, 243 Kan. 639, 763 P.2d 572

DE bc edevceceesdeseeeseeesiesever 14

Woolfolk v. Virginia, Va. , 447 S.E.2¢

I oad oe tn ée oie déuccccéa 13

STATUTES AND REGULATIONS

ea he 12

42 U.S.C. § 602(a(26).... 2... eee 17

| RR RP HR tl acne gh 13

Violent Crime Control and Law Enforcement

Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 12, 13

California Welfare & Institutions Code

EIS ae ae nl ean ee 1, 2, 19, 24

45 C.F.R. §§ 232.12, -.42 (1992)

HEARIN <S AND REPORTS

Bureau of Labor Statistics, Usual Weekly

Thin Ouaner 994 (Oct 201988) 9

Committee On Ways and Means, U.S. House

of Representatives, 103d Cong., 2d Sess.

(Comm. Print 1994) ("1994 Greenbook")..... . 3, 4, 19

Hearing Before the- Subcommittee on Crime and iminal Justice of the H ; )

Judiciary, 103rd Cong., 2nd Sess.

(June 30, 1994)

General Accounting Office, Report to the Chairman,

Subcommittee on Employment and Housing, Committee

on Government Operations, House of Representatives,

Workers at Risk: Increased Numbers in Contingent

Employment Lack Insurance, Other Benefits (1991) .. 19

, : . !

Women Before the Subcommittee on Crime and

riminal Justice of the H 3

Judiciary, 102d Cong., 2nd Sess. (Feb. 6, 1992) ..... 4

LAW REVIEW ARTICLES

M. Katherine Boychuk, Comment, Are Stalking

88 Nw. U. L. Rev. 769 (1994)... 2... 2.255 5s 12

Lisa G. Lerman, A Model State Act: Remedies

for Domestic Abuse, 21 Harv. J. on Legis. a

C—O Fer TT TTT

Martha R. Mahoney, Legal Images of Battered

90 Mich. L. Rev. 1 (1991) ..........-505055 9, 20

Donna Mascari, Comment, Homeless Families:

2, 35 UCLA

Do They Have a Right to Integrity?,

gy Feeeerrrrrr tte 18

Kathleen Waits, The Criminal Justice System’s

eictttlnid, .., . Ur eos Dee eee 21

Joan Zorza, ing:

, 25 Clearinghouse Rev. 42]

ee tee re oP ee 18, 24

Joan Zorza, Women Battering: High Costs and the

State of the Law, 28 Clearinghouse Rev. 383

nie MRE oe ee 6, 22

OTHER AUTHORITIES

B.E. Aguire, 2

in Shelters, 30 Social Work 350 a 24

Lee H. Bowker, Beating Wife Beating aaa 14

Barbara Davidson and Pamela Jenkins, Class

ife, 1989 Social Work

moh ts Ope Porte or eee 16, 17

The Family Violence Project, Family Violence:

ei 17

Kathleen Ferraro and John Johnson,

, 6 Studies in Symbolic

Interaction 377 (1985) ee, ne ee 11, 13, 17

Lisa Freedman,

(Connie Guberman and Margie Wolfe, eds. 1985) . 20, 21

Richard Gelles and C.P. Cornell,

Intimate

Violence in Families pe ae 21

vii

Edward W. Gondolf and Ellen R. Fisher, Battered

Leamed Helplessness (1988) .............. 14, 24

Grim Lives of State’s Kids, San Francisco Examiner,

es ee i ike eeecees 19

Caroline Harlow, U.S. Dep’t of Justice,

Female Victims of Violent Crime (1991) .......... 9

Ida M. Johnson, Economic, Situational, and

Psychological Corre! F the Decision-

Making Process of Battered Women, 73 Fam. in

Soc’y: J. of Contemp. Human Serv. 168 (1992) .. 23, 24

Del Martin, Battered Wives (1976) ............ 17

Ginny NiCarthy, Getting Free: A Handbook for

Women in Abusive Relationships (1986) ......... 23

Lewis Okun, Women Abuse: Facts Replacing

I ie ies Manel Da etree 5 we oo 16, 24

Mildred Pagelow, Justice for Victims of Spouse

Abuse in Divorce and Child Custody Cases,

8 Violence and Victims 69 (1993) ....... 7, 9, 10, 17

Mildred D. Pagelow, Women Battering: Victims and

Their Experiences (1961) ... 0... wee eee 21

viii

Population Reference Bureau, Inc., What the 1990

Rosalind Resnick, California Takes Lead: States

Enact “Stalking Laws, Nat’! L.J., May 11, 1992,

Melanie Shepard and Ellen Pence, The Effect of

3 Affilia 55 (1988)

Michael J. Strube and Linda S. Barbour, Factors

Related to the Decision to Leave an Abusive

ree 1984 J. of Marriage and the Fam.

Michael J. Strube and Linda S. Barbour, The

Decisi I \busive Relationshio:

es 1983 J. of Marriage and the Fam.

Cris M. Sullivan, et al., After the Crisis:

A_Needs Assessment of Women Leaving a

Domestic Violence Shelter, 7 Violence and

Victims 267 (1992)

Lenore Walker, Abused Women and Survivor

I a a ra we a et, oki x oo a 21

Lenore Walker, Battered Woman Syndrome (1984) .. 20

Margo Wilson and Martin Daly, Spousal Homicide

Risk and Estrangement, 8 Violence and Victims 3

(1993)

INTEREST OF AMICI CURIAE

Amici Curiae file this brief in support of Respondents.

The specific statements of Amici Curiae are set forth in

Appendix I.'

SUMMARY OF ARGUMENT

Section 11450.03 of the California Welfare and

Institutions Code creates a classification that deters

interstate migration and penalizes those who exercise their

right to travel. The classification disfavors residents who

have lived in California for less than one year by limiting

Aid to Families with Dependent Children ("AFDC")

benefits to the amount that would have been available in the

resident’s prior home state. Victims of domestic violence,

who often are subject to economic deprivation as well as

physical and emotional abuse, are particularly vulnerable to

the harsh effects of the law. Absent adequate financial

support, a battered woman’s decision to flee an abusive

relationship will be constrained by the risk of homelessness,

malnutrition and poverty.

The statute is a deterrent to victims of domestic

violence who, because they may be stalked by former

partners or because they must turn to family and friends for

crucial emotional or financial support, often must flee from

abuse across state lines. Many abused women, particularly

those who flee with their children, have such limited

economic resources that their flight from violence results in

temporary indigency. The availability of resources

sufficient to live independently is a significant factor in a

victim’s ability to separate from her batterer. The

' Amici Curiae file this brief with the consent of all parties. Letters of

consent have been filed with the Clerk of the Court pursuant to Rule

37.3 of the Rules of this Court.

California statute in question would deny even the

minimally adequate financial assistance deemed necessary to

survive in the state and would reduce substantially a

victim’s ability to flee. Thus, the statute acts to deter

interstate migration by victims of domestic violence.

Those battered women who nevertheless ‘ce to

California will be penalized for their exercise of the right to

travel. Because the availability of financial assistance plays

such a critical role in ending the cycle of domestic violence

by enabling the victim to leave the abusive relationship, the

Statute’s differential treatment of newly arrived residents

will severely burden the vast majority of battered women

who have fled to California. Victims of domestic violence

who leave abusive relationships face a high risk of

homelessness and other poverty-related ills. Lower AFDC

support would exacerbate the financial hardship faced by

battered women and their children at a time when they are

least able to afford it. For battered women who are unable

to support themselves and their children, a decrease in

AFDC benefits increases the likelihood that they will be

forced to return to their abusive partners.

ARGUMENT

I. BECAUSE THE CALIFORNIA STATUTE

CREATES A DURATIONAL RESIDENCY

REQUIREMENT THAT RESULTS IN UNEQUAL

TREATMENT OF RESIDENTS BASED SOLELY

ON THE LENGTH OF TIME THEY HAVE LIVED

IN’ CALIFORNIA, THE STATUTE MUST BE

SUBJECT TO STRICT SCRUTINY

Section 11450.03 of the California Welfare and

Institutions Code is a durational residency requirement that

divides otherwise similarly situated needy California

residents into two classes: those who have resided in

California for more than one year; and those who have not.

Under the statute, members of the former class are eligible

for an AFDC benefit amount that is minimally adequate for

survival in the State of California. Notwithstanding the

marginal adequacy of that amount, the latter class of needy

California residents are eligible for the lesser of the

maximum payment allowable in their state of former

residence or the payment amount in California.’

For Plaintiffs, like most needy families who have

moved to California’, the durational residency requirement

burdens the right to travel by reducing the AFDC benefit

available to a level significantly below that afforded to

longer term residents. Plaintiff Deshawn Green and her

two children moved to California from Louisiana in an

effort to escape domestic violence. J.A. 71. She applied

for AFDC several days after arriving in California. Id.

Had the statute not been enjoined by the District Court,‘

Ms. Green’s monthly grant would have been limited to

$190, the maximum allowable grant in Louisiana. Id. A

2 For families emigrating from those few states in which the maximum

allowable AFDC payment is higher than in California, the grant would

be calculated under California’s formula.

> Although this brief addresses the particular effects of the durational

residency requirement on battered women and their children, it is

important to note at the outset that the statute’s effect is borne almost

entirely by women. In 1992, 89.4% of AFDC recipient families

reported were headed by single mothers. Committee On Ways and

Means, U.S. House of Representatives, 103d Cong., 2d Sess.,

Overview of Entitlement Programs 400 (Comm. Print 1994) (“1994

Greenbook").

* Green v. Anderson, 811 F. Supp. 516 (E.D. Cal. 1993), aff'd, 26

F.3d 95 (9th Cir. 1994).

longer term California resident with the same size family

would have been eligible for $624.° Id. at 72.

The right to interstate travel “has long been recognized

as a basic right under the Constitution.” United States v.

Guest, 383 U.S. 745, 757-58 (1966). A_ residency

requirement is subject to strict scrutiny if it deters, or is

intended to deter interstate migration, or if it will penalize

the exercise of the right to travel.

Attomey General of

New York v. Soto Lopez, 476 U.S. 898, 903 (1986)

(plurality opinion), 920-21 (O’Connor, J. dissenting).°

As amici will discuss, by calculating AFDC benefit

amounts based on whether and from where a needy family

has recently emigrated, the California statute will deter

victims of domestic violence from exercising their right to

travel from one state to another. Interstate mobility and

economic supports are critical to a battered woman’s

successful escape from domestic violence. Nevertheless,

the durational residency requirement denies both to victims

of domestic violence. The resulting deterrent effect of the

* Plaintiff Diana Bertollt would have received $280 per month for

herself and her child instead of $540, J.A. 81, and Plaintiff, Debby

Venturella would have received $341 instead of $624 for herself and

two children. Id. at 76. Since Plaintiffs applied for AFDC in

California, the grant for a family of three was reduced from $624 to

$607. 1994 Greenbook at 368. The maximum allowable payments for

eligible AFDC recipients in every state except Alaska, Connecticut,

Hawaii, Vermont and some regions of New York are lower than in

California. 1994 Greenbook at 368-69.

* As Plaintiffs state, although presence of any one of the three

categories — deterrent purpose, an actual deterrent or penalty — will

trigger strict scrutiny, all three are raised by the California durational

residency requirement. Amici adopt tue argument of Plaintiffs and

address in this brief the latter two categories as they affect battered

women.

statute can only be justified by a compelling government

interest.

According to the standards governing analysis of

durational residency requirements established by this Court,

the relevant question is not whether former residents of a

state are being treated the same as those who still live in

that state but, rather, whether all current residents of the

same state are treated equitably. Thus, it is irrelevant that

under the statute, residents of California who emigrated

from Louisiana within the twelve months preceding their

receipt of AFDC would receive the same benefit amount as

current residents of Louisiana.’ The right to travel

“protects residents of a State from being disadvantaged, or

from being treated differently, simply because of the timing

of their migration, from other similarly situated residents."

Soto-Lopez, 476 U.S. at 905 (1986); see also Zobel v.

Williams, 457 U.S. 55, 60 n.6 (1982). Residents of

California who otherwise are eligible for the AFDC support

in the amount necessary for basic subsistence in California,

are penalized by the durational residency requirement which

operates to deprive them of the basic necessities of life by

permitting support only at the level necessary in, for

example, as in Plaintiffs’ cases, Louisiana, Colorado or

Oklahoma.

For Plaintiffs, as for all battered women fleeing

domestic violence, the deprivation is particularly onerous.

Adequate financial assistance often is the key factor that

’ Furthermore, as the District Court noted “the measure cannot fairly be

said to provide the same payment as new residents could have received

in the state of their prior residence since the cost of living, particularly

housing, varies so substantially from state to state and generally is much

higher in California than elsewhere.” Green v. Anderson, 811 F. Supp.

at 521.

enables battered women and their children to remain

separated from their abusers. Denial of subsistence level

benefits may force battered women to return to dangerous,

and often life-threatening situations.

fl. BATTERED WOMEN WILL BE HARMED BY

THE DURATIONAL RESIDENCY

REQUIREMENT BECAUSE THEY FREQUENTLY

MUST FLEE ACROSS STATE LINES TO

PROTECT THEMSELVES AND THEIR

CHILDREN

A. Because Separation Is The Most Dangerous

Time For Many Battered Women, Victims Of

Domestic Violence Often Must Cross State Lines

To Reach Safety

Between three and four million women each year are

battered by husbands, partners and boyfriends. Domestic

Violence: Not Just A Family Matter: Hearing Before the

Sul Cri | Criminal Justi f the H

Committee on the Judiciary, 103rd Cong., 2nd Sess. (June

~~ 1994) (statement of Senator Joseph Biden Jr.); Joan

tza, Women Battering: High Costs and the State of the

Law, 28 Clearinghouse Rev. 383, 386 (1994) [hereinafter

State _of the Law]; Patricia Horn, Beating Back the

Revolution, Dollars and Sense, Dec. 1992 at 12. Half of

these women are beaten severely and in 30 percent of the

domestic violence incidents reported, assailants use

weapons. Joan Zorza, supra, State of the Law, at 386. In

the United States, 31.5 percent of women killed are

murdered by their husbands. Id. at 387. Batterers exert

control over their partners’ lives by force, threat of force,

and emotional and economic abuse.

This Court previously has acknowledged the danger

and magnitude of the domestic violence epidemic. Planned

Parenthood of Southeastern Pennsylvania _v. Casey, 505

U.S. _, 112 S. Ct. 2791, 2826-30 (1992). In Casey, this

Court invalidated, under an undue burden standard, a

spousal notification provision of an abortion statute,

concluding that

there are millions of women in this country who are the

victims of regular physical and psychological abuse at

the hands of their husbands. Should these women

become pregnant, they may have very good reasons for

not wishing to inform their husbands of their decision

to obtain an abortion. . . . Many may have a

reasonable fear that notifying their husbands will

provoke further instances of child abuse .. . . Many

may fear devastating forms of psychological abuse from

their husbands, including verbal harassment, threats of

future violence, the destruction of possessions, physical

confinement to the home, the withdrawal of financial

support... .

Id. at__, 112 S. Ct. at 2828-29.

As the Court noted in Casey, there is a positive

correlation between spousal abuse and child abuse. ld. at

_, 112 S. Ct. at 2828. Like Plaintiffs, many women

attempt to flee domestic violence not only to protect

themselves, but to protect their children. Children of

battered women are twice as likely to be abused and their

fathers are three times more likely to be their abuser.

Mildred Pagelow, Justice for Victims of Spouse Abuse in

Divorce and Child Custody Cases, 8 Violence and Victims

69, 77 (1993) [hereinafter Justice for Victims]; Violence

Against Women: Domestic Violence Hearing Before the

Senate Judiciary Committee, 10st Cong., 2nd Sess. 7

(Dec. 11, 1990) (statement of Susan Kelly-Dreiss,

Pennsylvania Coalition Against Domestic Violence).

Between 50 and 90 percent of battered women attempt

to escape their abusive environment. Patricia Horn, supra,

at 21. However, their efforts are hampered, and often

frustrated, by the economic deprivation that frequently

accompanies domestic violence, see discussion infra at 15-

22, and by the volatile response of the abuser to the

victim's departure. Abusers do not lightly relinquish

control over their former partners. Typically, an abuser

searches desperately for his partner once she has fled. For

many abused women, the only way to stop violence that

continues after separation is to move a great distance away

from the abuser. Plaintiff DeShawn Green felt that it

would not be safe for her and her children to live in the

same state as her batterer. J.A. 72. Plaintiff Diana

Bertollt moved to California from Colorado because she

was afraid for her own safety and the safety of her son.

J.A. 78. Testifying before the House Subcommittee on

Crime and Criminal Justice, one victim of domestic

violence described her flight:

Sixteen years ago I packed everything that would fit

into a single suitcase, left behind the few possessions |

owned, took my two month old baby girl and ran for

my life. . . . As I got on the airplane in Dallas that

day, | knew that I would never go back and that |

could now begin to create a future for my daughter and

myself, a future of freedom and safety.

Before the Sul = | Criminal Just :

the House Committee on the Judiciary, 103rd Cong., 2nd

Sess. (June 30, 1994) (statement of Karla DiGirolamo).

Leaving an abusive relationship does not always put an

end to the violence. Department of Justice statistics show

that divorced and separated women report being battered 14

times as often as women still living with their partners.

Caroline Harlow, U.S. Dep’t of Justice, Female Victims of

Violent Crime 5 (1991). In fact, battering often increases

after separation, as batterers escalate their violence in an

attempt to coerce the battered woman into reconciliation or

to retaliate for her departure. Mildred Pagelow, supra,

Justice For Victims, at 72; Margo Wilson and Martin Daly,

8 Violence and

Spousal Homicide Risk and Estrangement,

Victims 3 (1993); see Martha R. Mahoney, —"-

Battered Women: Redefining the Issue of Separation, 90

Mich. L. Rev. 1, 5-6 (1991) ("At the moment of

separation...the batterer’s quest for control often becomes

most acutely violent and potentially lethal"). Testifying

before Congress, one victim described her batterer’s

response when she tried to escape with her two small

children: “You lied to me when you said our wedding

vows and said until death do we part. That’s the way its

going to be." Oversight Hearing on the Issue of Violence

Against Women Before the Subcommittee on Crime and

Criminal Justice of the House Committee on the Judiciary,

102d Cong., 2nd Sess. 7 (Feb. 6, 1992) (statement of Jane

Doe on Behalf of Victim Services). Battered women who

leave their partners face an elevated homicide risk. Margo

Wilson and Martin Daly, supra, at 7. The danger of

separation assault is particularily acute during the first few

months of separation. Id. at 10; see Martha Mahoney,

Supra, at 6 (naming the escalating violence “separation

assault" and identifying it as a common thread uniting

“suits on enforcement of temporary restraining orders, the

cases with dead women. . . and the cases with dead men.").

The criminal law is replete with cases describing

serious bodily injury and murder committed by an abuser in

response to a battered woman's flight. See Pagelow, supra,

Justice For Victims, at 72. For example, in Godfrey v.

Georgia, 446 U.S. 420 (1980), the petitioner was convicted

of murdering his wife soon after she had left the marital

home and filed for divorce. The Court noted that Godfrey

had abused his wife during the marriage, id. at 424 n.3,

and described the victim’s departure as following a

particularly violent episode. Id. at 424.

Increased violence resulting from a battered woman's

escape also has been evident in cases in which battered

women have killed their abusers. In Kansas v. Hundley,

236 Kan. 461, 693 P.2d 475 (1985), the Kansas Supreme

Court described the events preceding the killing:

This was all of [decedent's] violence [defendant] could

take. She moved to the Jayhawk Junior Motel. As in

typical wife-beating cases, her moving did not eliminate

the problem. [Decedent] then started a pattern of

constant harassment. He would call her night and day

to threaten her life and those of her family. She was

so frightened she started carrying a gun.

On . . . the day of the shooting, [defendant] had

seen [decedent] early in the day, at which time [he]

told [her] he was going to come over and kill her.

That night she heard a thumping on her motel door

while she was in the bathroom. By the time [she] got

out of the bathroom [he] had broken the door lock and

entered the room. His entry was followed by violence.

[She] was hit and choked and life was again threatened.

Id. at__, 693 P.2d at 476. Similarly, in a case involving

the use of battered woman syndrome evidence and

demonstrating the severity of separation assault against

battered women, the Supreme Court of Pennsylvania

detailed the history of violence between the defendant and

decedent:

[SJhe agreed to meet with him to make it clear that she

did not want to see him any more. When [defendant]

asked [decedent] to take her home from this meeting,

[he] drove instead to a shopping center where he

dragged her out of the car and then repeatedly

attempted to run over her with the car. Failing to run

over [her], [he] finally jumped out of the car and

punched [her], breaking her nose and rendering her

semi-conscious.

Pennsylvania _v. Stonehouse, 521 Pa. 41, 555 A.2d 772,

775 (1989).

Even escape to a shelter for victims of domestic

violence is not always successful. Many batterers will stalk

their victims. Using personal contacts or creative

resources, they are able to track down the addresses of

local shelters. Kathleen Ferraro and John Johnson, The

New Underground Railroad, 6 Studies in Symbolic

Interaction 377, 380-83 (1985) (describing case histories in

which batterers got information from friends on the police

force; used visitation with children to locate their victims;

or begged for information from sympathetic taxi drivers).

State legislators have begun to recognize that many

women are relentlessly terrorized by men with whom they

previously had a relationship and that existing laws and

orders of protection cannot stop the abuse. California was

the first state to adopt an “anti-stalking” law in an attempt

to deal with the problem.* Forty-eight states and the

Laws, Nat’! L.J., May 11, 1992, at 3, 27 (California enacted law in

District of Columbia now have anti-stalking laws.’ Despite

the widespread enactment of anti-stalking laws, batterers

continue their persistent terrorism of women who have left

them.'® Judicial opinions upholding convictions under the

stalking laws reveal the menacing nature of batterers

continuing abuse:

Following appellant’s separation from [the victim]

in 1987, he engaged in a pattern of conduct that

frequently involved following her and maintaining

surveillance on her residence. In the summer of 1992,

after [the victim] began dating Bill Carter, appellant's

surveillance activities increased dramatically. These

activities included driving up and down the dead-end

Street where [the victim] lived, parking within sight of

the residence, and watching the house for extended

periods of time. . . In July 1992, [the victim] was

“alarmed” after discovering appellant had followed her

to an out-of-town wedding... .

1990 after five women were murdered in succession by former

husbands or boyfriends. ).

* M. Katherine Boychuk, Comment,

Are Stalking Laws

Unconstitutionally Vague or Overbroad?, 88 Nw. U. L. Rev. 769 n.!

(1994).

28 U.S.C. § 534 by adding a provision granting courts access to

national cnmunal information databases for use in domestic violence or

stalking cases. Violent Crime Control and Law Enforcement Act of

1994, Pub. L. No. 103-322 §40601, 108 Stat. 1796, 1950-51. That

provision also authorized federal and state agencies to enter into

databases information regarding arrests, convictions and warrants for

stalking and domestic violence. Id.

On September 19, 1992, at 7:00 a.m. Mr. Carter

awoke to a telephone call from a male caller who

stated, "If you don’t stop seeing her, I’m going to

shoot both your asses.” . . .

The evidence established that in response to

appeliant’s threat and course of conduct, [the victim

carried tear gas in her purse, had motion detector lights

installed on the outside of her home, and “slept with a

hamener" beside her bed. She watched for appellant

everywhere she went and on one occasion, she obtained

a police escort... .

ia, _ Va. _, 447 S.E.2d 530, 531-32

(Ct. App. 1994).

In an effort to provide escape from the most persistent

abuser, battered women’s shelters and service providers

have banded together, often informally, in what has been

described as a modem incarnation of the "underground

railroad." Kathleen Ferraro and John Johnson, supra, at

378. The underground railroad enables women to flee to

other cities and states and begin a violence-free life for

themselves and their children."' For one victim of

domestic violence, “what she needed was an escape route to

a city where neither she nor [her batterer] had other

contacts or resources. This is precisely what the

underground railroad provided. She was whisked off to a

city about 2,000 miles away...." Id. at 38).

'' In recognition of battered women’s need for secrecy as they flee

under these circumstances, the United States Postal Service has been

ordered to “promulgate regulations to secure the confidentiality of

domestic violence shelters and abused person's addresses." 42 U.S.C.

§ 13951, added by Pub. L. No. 103-322 § 40281 (1994).

B. Having Made The Decision To Escape, Victims

of Domestic Violence Often Must Seek Shelter

And Support From Family Members Who Live

In Other States

Having made the decision to flee, women in

abusive relationships often must move to another state to

receive crucial emotional support and transitional shelter

from families and friends while they try to put their lives

back in order. See Lee H. Bowker, Beating Wife Beating

11, 75, 136 (1983); Edward W. Gondolf and Ellen R.

Fisher, Battered Women as Survivors: An Alternative to

Treating Learned Helplessness 28 (1988).

Plaintiffs are good examples of this pattern. DeShawn

Green left her abusive partner in Louisiana to return to her

childhood home, Sacramento, California, hoping to take

shelter with her mother. J.A. 71. Debby Venturella left

her increasingly abusive husband in Oklahoma and moved

with her child to California to stay with her parents and

grandfather. J.A. 75. Diana Bertollt and her son moved in

with her uncle in California because she feared that the

partner she left behind in Colorado was a danger to them.

J.A. 80. Many women in Plaintiffs’ position, with no place

else to turn, seek help from relatives in distant locations.

See, e.g., Kansas v. Stewart, 243 Kan. 639, 763 P.2d 572

(1988) (battered wife fled from Kansas to her sister’s home

in Oklahoma).

Considering a challenge to a one-year county residency

requirement for free medical care, this Court in Memonial

Hospital v. Maricopa County, 415 U.S. 250 (1974), noted

the deterrent effect of the statute on one segment of the

population:

de Oe RRR HF owe fe ee re my

SE EINE Ae 8 ey COE TR ey!

A person afflicted with a serious respiratory ailment,

particularly an indigent whose efforts to provide a

living for his family have been inhibited by his

incapacitating illness, might well think of migrating to

the clean dry air of Arizona, where relief from his

disease could also bring relief from unemployment and

poverty. Bu: he may hesitate if he knows that he must

make the move without the possibility of falling back

on the State for medical care... .

Id. at 257. Battered women, even more than the ailing

indigents in Maricopa, must emigrate to find relief from the

violence in their homes. By denying newly arrived

residents the means to acquire basic necessities, California’s

durational residency requirement effectively limits the

escape routes available to families that need to flee across

State lines. As a result, the statute deters the exercise of

the right to migrate between states and must be subject to

Strict scrutiny. See, e.g., Soto-Lopez, 476 U.S. at 903

(plurality opinion), 920-21 (O’Connor, J. dissenting).

Il. THE CALIFORNIA DURATIONAL

RESIDENCY REQUIREMENT DETERS

BATTERED WOMEN’S’ EXERCISE OF

THEIR RIGHT TO TRAVEL

A. The Residency Requirement Will Burden The

Right To Travel Of Battered Women Whose

Escape From Abuse Will Increase Their

Economic Need

Because the economic condition of battered women’s

lives is desperate, the durational residency requirement will

have a devastating effect on their ability to flee domestic

violence. In Shapiro v. Thompson, 394 U.S. 618, 622

(1969), this Court invalidated a one-year waiting period for

the receipt of welfare benefits reasoning that the statutes in

question were

. well suited to discourage the influx of poor

families in need of assistance. An indigent who desires

to migrate, resettle, find a new job, and start a new life

will doubtless hesitate if he knows that he must risk

making the move without the possibility of falling back

on state welfare assistance during his first year of

residence, when his need may be most acute.

Id. at 629. To preserve their safety and the safety of their

children, Plaintiffs in this case, as well as many other

battered women and their children, crossed state lines in

order to begin a new life. As amici discuss infra at 16-19,

many battered women’s financial needs are most acute

when they first separate from their batterers. The denial of

adequate financial assistance at this critical time will "chill

the assertion of [the right to travel] by penalizing those who

choose to exercise [it]." Id. at 631 (citing United States v.

Jackson, 390 U.S. 570, 581 (1968)).

While remaining in abusive relationships, battered

women often are subject to complete control and financial

isolation by their batterers. Battered women’s economic

vulnerability is exacerbated by their need to flee persistent

and escalating violence. Women frequently must leave

quickly and secretly without time to pack. Women of all

income levels often must leave everything behind. Barbara

Davidson and Pamela Jenkins, Class Diversity in Shelter

Life, 1989 Social Work 491, 492. As a result, many

women must escape and hide from a batterer with very few

resources, often consisting only of money they have

managed to hide or scrape together over long periods of

time. See, e.g., Lewis Okun, Women Abuse: Facts

Replacing Myths 69 (1986); Del Martin, Battered Wives 84

(1976) (citing study where a woman managed to save $1.75

over a two-year period. Adding that to the five dollars her

grandmother sent her for Christmas, she had just enough to

buy bus tickets).

Women who flee usually take their children with them

and thus have additional financial responsibilities. Barbara

Davidson and Pamela Jenkins, supra, at 492. Because

battered women may seek to protect themselves and their

children by trading financial support or distribution of

assets for more protective custody or limitations on the

batterers’ visitation with their children, they often are

unable to rely on sources of support available to other

single parents. Mildred Pagelow, supra, Justice For

Victims, at 74; The Family Violence Project, Family

Violence: Improving Court Practices [Recommendations

from the National Council of Juvenile and Family Court

Judge’s Family Violence Project] (1990). In some

instances, abused women are, legitimately, too afraid to

seek child support or maintenance because they do not want

any contact with their abuser. Patricia Horn, supra, at 22.

Where women do pursue child support or divorce litigation,

batterers often will retaliate by waging financial warfare. A

batterer may, for example, empty the joint bank accounts

and prolong divorce or custody proceedings to increase the

victim’s legal costs. See id. at 21.

When less drastic measures have not stopped the abuse

and harassment, some women have not only fled, but “gone

underground,” cutting off all contact with their former lives

and adopting new names. See, e.g., Kathleen Ferraro and

John Johnson, supra, at 378. As a result, they encounter

other obstacles to financial stability. They cannot seek

child support because it would alert the man stalking them

to their new location. Cf. 42 U.S.C. § 602(a)(26) (1991);

45 C.F.R. §§ 232.12, -.42 (1992) (AFDC recipients are

released from obligation to cooperate with state’s child

support collection efforts if doing so would threaten

physical or emotional harm). They also cannot try to

recover possessions left behind in the initial escape and may

face difficulty obtaining a new job because they cannot risk

giving old employers as references for fear that either the

potential employers would learn their true identities or their

old employers would discover their new locations.

Women’s escape from violence in their own homes is

dependent, to a great extent, on available financial

resources. See discussion infra at 22-25. Without adequate

income support, women who leave battering relationships

face a high risk of becoming homeless. Battered women

with or without children comprise a significant portion of

the homeless population. Joan Zorza, Woman Battering: A

Major Cause of Homelessness, 25 Clearinghouse Rev. 421,

421 (1991) [hereinafter Homelessness]; Donna Mascari,

Comment, Homeless Families: Do They Have a Right to

Integrity?, 35 UCLA L. Rev. 159, 163 (1987). According

to one recent survey of women housed in a shelter for

victims of domestic violence, when asked to specify what

resources they needed, 41 percent of the women seeking to

end abusive relationships described housing as a necessary

resource. Cris M. Sullivan, et al., After the Crisis: A

WwW

Shelter, 7 Violence and Victims 267, 272 (1992). Without

access to the support necessary to survive at a minimal

level, a victim of domestic violence and her children may

be forced to choose between abuse or homelessness and

indigency. For instance, Plaintiffs themselves were unable

to find affordable housing in California with the reduced

grant amount. J.A. 72, 76, 81.

Section 11450.03 of the California Welfare and

Institutions Code would only further diminish the economic

resources available to victims of domestic violence.’

Faced with poverty and homelessness, battered women,

particularly those with children often will

balance the possible harm to the children through

inadequate housing with the harm from maintaining the

relationship. Unless the children are threatened

directly or indirectly, the woman may well choose for

‘2 Battered women with children face significant financial obstacles as a

result of their abusers’ conduct towards them. However, these women

and their families also must confront the economic hurdles facing all

female-headed households. In California, fewer than half of all children —

with court-ordered child support receive money from their noncustodial

parent. Grim Lives of State’s Kids, San Francisco Examiner, Sept. 25,

1994 at B-1 (reporting recent study by Children Now.) By some

estimates, absent parents owe $18 billion in uncollected child support.

Patricia Horn, supra, at 22. This has a substantial negative impact on

women who head 78 percent of all single-parent households and 88

percent of = 9 sn families. ee suteenes Bureau,

20, "32 (1993). le tho thied quarter of 1994, cine aieceaded full-

time earned only 77.9 percent of the median earnings for men. Bureau

of Labor Statistics, Usual Weekly Earnings of Wage and Salary

Workers: Third Quarter 1994 (Oct. 26, 1994). Fewer than half of all

employed women are full-time year-round workers. Population

Reference Bureau, Inc., supra, at 85. This is significant because

families headed by part time workers are four times more likely to be

poor. General Accounting Office, Report to the Chairman,

Subcommittee on Employment and Housing, Committee on Government

——- House of Ls meremsamtse: Sateen. & Se lnemenat

(1991). When Ge guide wotine > dase daaibeonal, the family i is

eight times as likely to be poor. Id. For working poor women, they

face the additional cost of child care which often amounts to 23 percent

of their income. 1994 Greenbook at 541. For nonpoor families, child

care costs represent 9 percent of their income. Id.

them rather than herself. In a very real way, she is

choosing between known and unknown dangers... .

Martha Mahoney, supra, at 23. Because the California

Statute poses a danger of homelessne$s and extreme

deprivation to a battered woman and their children, it will

deter the flight of battered women from abusive home

environments.

B. Battered Women Often Are Economically

Dependent On Their Abusers And Thus Have

Substantial Economic Needs That Will Not Be

Met By Reduced AFDC Benefits

Because many domestic violence victims are

economically dependent on the men who abuse them, few

victims have the resources necessary to begin a new life for

themselves and their children. Batterers commonly isolate

battered women from financial resources. See Casey, 505

U.S. __, 112 S. Ct. at 2828 (citing Lenore Walker, The

Battered Woman Syndrome 28 (1984)). For example,

many battered women do not have ready access to cash,

checking accounts, or charge accounts. Lisa G. Lerman, A

Model State Act: Remedies for Domestic Abuse, 21 Harv.

J. on Legis. 61, 90 (1984). One study showed that 27

percent of battered women had no access to cash, 34

percent had no access to a checking account, 51 percent had

no access to charge accounts, and 22 percent had no access

to a car. Lenore Walker, supra, at 28. Batterers

economically isolate women of all income levels. Lisa

Freedman, Wife Assault in No Safe Place 47 (Connie

Guberman and Margie Wolfe, eds. 1985); Patricia Horn,

supra, at 21. This economic isolation may itself increase

the violence. According to experts on domestic violence,

the more economically dependent a woman is on her

batterer, the more likely she is to be at risk for serious

injury. Michael J. Strube and Linda S. Barbour, The

Decisi I \busive Relationship: _E :

Dependence and Psychological Commitment, 1983 J. of

Marriage and the Fam. 785, 786.

Some batterers who are distrustful of any outside

contact their partners may have, forbid their partners from

working outside the home. See Mildred D. Pagelow,

Women Battering: Victims and Their Experiences 150

(1981); Patricia Horn, supra, at 12. In one study, one third

of the women surveyed reported that their batterers had

prohibited them from working. Melame Shepard and Ellen

Pence, The Effect of Battering on the Employment Status of

Women, 3 Affilia 55 (1988). Plaintiff Diana Bertollt

illustrates a similar pattern. She was forced to discontinue

her school attendance when her abusive partner confined

her to her home. J.A. 80.

The situation of battered women who work outside the

home is little better than those who do not. They often are

forced to relinquish their earnings to batterers who insist

upon handling all the money in the relationship. Lenore

Walker, Abused Women and Survivor Therapy 62 (1994);