This opinion involves the trial court's non-renewal of a domestic violence restraining order (DVRO). The Court of Appeal reverses and remands so the trial court can properly analyze the relevant factors, and I've got no substantial qualms with that result.
But one sentence in Justice Zukin's opinion struck me as interesting, so I thought I'd look into it further.
After separating, the husband pervasively stalked his ex-wife, so there was clearly a basis -- for this reason as well as many others -- for the initial two-year DVRO entered below. After the DVRO was issued, there's dispute about what exactly the husband did, but everyone admits that his stalking radically diminished, though there still might have been some obsessive components and potential stalking. (You can read the opinion for more details.)
In reversing and remanding, Justice Zukin points out -- clearly correctly -- that there doesn't need to be physical violence to issue, or renew, a DVRO. Stalking's enough. Among other things, the stalking itself may entirely reasonably put the victim in fear for her safety, thereby justifying a DVRO.
So Justice Zukin says:
"The law does not permit courts to make a distinction between physical and non-physical abuse when issuing DVROs. Nor is there any indication that courts should make such a distinction when deciding whether to renew them. And with good reason. Stalking is 'strongly associated with physical violence'; men who stalk their partners after a break-up are four times more likely to assault them."
I was struck by that last sentence. Is it really true that men who stalk their former partners are four times more likely to assault them? (The sentence is also gender-specific; is the same true for women, or, if it's not, is the number higher or lower?)
I'll say at the outset that this last sentence fully comports with my own intuition. If you asked me, I would think it common sense that someone who stalks someone is substantially more likely to physically assault them too. The underlying cause -- the obsession, the lack of self-control, the desire to control the victim, etc. -- are all part and parcel of both the stalking as well as the physical assault.
But I wanted to know the actual number, and what, if anything, the research bore out on this front.
Justice Zukin's opinion cites her source for the "four times as likely" number as "(Lo, A Domestic Violence Dystopia: Abuse via the Internet of Things and Remedies under Current Law (2021) 109 Cal. L.Rev. 277, 282.)." So I went back and looked at that.
That 2021 article didn't itself conduct a study; it simply cited Molly Dragiewicz & Yvonne Lindgren, The Gendered Nature of Domestic Violence: Statistical Data for Lawyers Considering Equal Protection Analysis, 17 AM. U.J. GENDER SOC. POL’Y & L. 229, 256 (2009). So I read that one. That 2009 article in turn didn't conduct its own study either; rather, it cited PATRICIA TJADEN & NANCY THOENNES, U.S. DEP'T OF JUSTICE, STALKING IN AMERICA: FINDINGS FROM THE NATIONAL VIOLENCE AGAINST WOMEN SURVEY 8 (1998).
But that final reference was, indeed, a study. It involved a telephone survey of 8,000 and 8,000 men. And the findings there are very robust. It does indeed mention the "four times" figure. So there you have it.
Two things, though.
First, the survey was conducted from November 1995 to May 1996. As a result, its results are now over a quarter-century out of date. That doesn't necessarily mean that the numbers or results are different now, of course. I would (obviously) hope that the current number would be lower -- as would all of us -- but I have no idea. Regardless, I thought this was a good example of how a particular figure can be (entirely properly) established at some past historical point and then reiterated and taken as established contemporary fact notwithstanding the passage of a substantial period of time.
Second, and perhaps more substantively, when I read the Court of Appeal's opinion, I thought that this figure was employed as a "cause-and-effect" shorthand; i.e., that we need to take stalking seriously in part because stalking often leads to physical abuse as well. That's basically what I hear Justice Zukin saying, and, again, that comports with my own preexisting intuition.
But that's not what the study actually says. It's instead correlation, not causation. The study says that ex-husbands (or partners) who stalk are four times as likely as non-stalkers to abuse. But a different way of saying that same figure is to say that ex-husbands who abuse are four times as likely as non-abusers to stalk. The two are merely associated; one doesn't cause, or even differentially result in, the other.
Further, there's no temporal differentiation there. The study didn't ask which of the abuse or stalking predated the other. Yep, it's four times more likely that they're correlated. But that could be because people who abuse during the marriage are far more likely to then stalk after the marriage collapses than non-abusers -- a result that would (again) correspond to my preexisting intuition on this front as well. Abusers are nutjobs, and nutjobs stalk.
Could it also be that people who don't abuse during the marriage but who stalk thereafter are more likely to then physically assault their former spouse after separation? Of course. But the study doesn't establish -- or even try to establish -- that connection. It doesn't distinguish between abuser husbands who then stalk as opposed to stalkers who then abuse.
So if you're someone who's stalked after your marriage collapses, does the fact that you're stalked mean that you're four times more likely to be physically assaulted by your former spouse (and hence that your enhanced fear in this regard is utterly rational)? No idea. Not from the study, anyway. It didn't look at that. It just looked at the correlation -- either way -- between abuse and stalking.
For all we know from the study, if you're stalked, you might have two times -- or ten times -- the risk of being physically assaulted by your former spouse. Or maybe half; we don't know. Correlation doesn't mean causation, especially when when you combine temporally disparate events (e.g., abusers who then stalk with non-abusers who then stalk and abuse).
This is another example, I think, of people using purportedly "hard numbers" to back up a preexisting intuition in a way that doesn't actually hold up. Do people that go to the hospital have higher mortality rates even after leaving the hospital? Sure they do. But that doesn't at all mean that going to the hospital killed 'em or heightened their risk of dying. People go to the hospital tend to do so because they're sick or injured, and those people in turn have a higher risk of dying later. Ditto, I would think for physical abuse and stalking. Spouses who abuse (I suspect) have a higher risk of stalking, and stalkers (I again suspect) have a higher risk of abuse, but that doesn't necessarily mean that you have a higher risk of being assaulted if your formerly non-assaultive husband starts stalking you. Maybe you do, maybe you don't, but the number isn't 4x. Or at least the study doesn't say so.
So that's my thought on that. An old number that might or might not be right about what it actually says, but probably not right -- or at least a total guess -- for what that number is ostensibly being employed to establish; i.e., that you can statistically and rationally fear that being assaulted is four times more likely if you're ex-husband is stalking you than if he's not.
