Last week, San Diego Padres left-hander Jose Torres was suspended for 100 games for violating MLB’s Domestic Violence Policy. Torres represents the ninth major leaguer to be investigated under the policy and the seventh to be suspended since the policy took effect at the beginning of the 2016 season, joining Aroldis Chapman, Jose Reyes, Hector Olivera, Jeurys Familia, Derek Norris, and Steven Wright. And that list doesn’t include players like Addison Russell, who was accused of spousal abuse last year in divorce proceedings. Torres, currently on the restricted list, is awaiting trial on “[c]harges of assault with a deadly weapon and criminal damage” stemming from this incident:
According to the probable cause statement contained in the court report, Torres knocked a door off its hinges and punched a hole in another door. He also pointed the gun at the victim, according to the report.\
While MLB’s domestic-violence policy has served to punish offenders, it doesn’t seem to have had any effect on the number of domestic-violence incidents. After five investigations and four suspensions in 2016 – the first full year of the program – there was just one suspension issued in all of 2017. But this year, the numbers are back up, with three investigations and two suspensions already in 2018. And while those numbers may be relatively small, especially compared to PED suspensions, domestic violence is an entirely different animal because it is not, unlike PEDs, what might be termed a “victimless crime.” Domestic violence and domestic abuse have real victims who often suffer real — and often severe — physical and emotional injuries. And those injuries are inflicted on both women and children; children exposed to domestic violence are often scarred for the rest of their lives.
So the question is what, exactly, MLB’s policy is trying to accomplish here. Originally, the idea was that MLB would step into the gap in the criminal law that often protected professional athletes accused of domestic-violence incidents. From a piece by Ken Rosenthal:
To illustrate how often the justice system fails to punish professional athletes accused of domestic violence, Bethany P. Withers — writing for the Harvard Law School Journal of Sports & Entertainment Law — conducted a review of 64 reported domestic violence and sexual assault incidents allegedly perpetrated by athletes in MLB, the NFL and NBA from Jan. 1, 2010 to Dec. 31, 2014.
Withers’ review found that only one of the 64 reported allegations resulted in conviction for the alleged crime, though four pleaded guilty to lesser charges and five to no contest. Nine of the 64 allegations were against baseball players. Only two, Milton Bradley and Evan Reed, were formally charged with a crime. Only Bradley was convicted, receiving a three-year prison sentence.
But as a substitute for the criminal law, MLB’s policy just isn’t all that effective. In the criminal law, “punishment has five recognized purposes: deterrence, incapacitation, rehabilitation, retribution, and restitution.” But it’s not at all clear that MLB’s policy accomplishes any of those five goals. Incapacitation is intended to prevent future recidivism by removing the offender from society, usually by incarceration. Obviously, a suspension doesn’t accomplish that. Deterrence and retribution are the reasons cited most often as the basis for MLB’s policy. Deterrence is basically designed to frighten the offender into not doing it again, while retribution is the idea of “an eye for an eye” – punishing a person who committed a wrong. But as Cindy Southworth, the executive vice president of the National Network to End Domestic Violence told USA Today, neither works at all well as the basis for a domestic-violence policy.
“Counter-intuitively, we don’t want sports leagues to have a zero tolerance policy,” she said. “And the reason for that is if we would say that the first time your partner calls 911 your career is over, her risk of homicide shoots through the roof. Because he has nothing to lose and everything to lose at the same time. We’ve actually been advising the sports league to take a very swift, very robust approach but not to say that first-time and you’re out of it, your career is over because the pressure then on the victim not to call for help is massive. And we want them to be able to call 911. We need them to reach out for help.”
And that just leaves rehabilitation and restitution, which might be the best aims of the policy. Nevertheless, they’re aims which MLB appears not to stressed. Restitution, as Henry Druschel at Beyond the Box Score notes, isn’t really a focus of the policy at all:
Consider the case of José Reyes. Reyes was the subject of a league investigation after his wife called police and reported that he grabbed her by the throat and pushed her into a door. He was eventually suspended for a hefty 51 games, and lost over $7 million in foregone salary as a result. Reyes was also required to make a donation to an anti-domestic violence charity… of $100,000. And what happened to his foregone salary? With nothing in the CBA or domestic violence policy requiring otherwise, that money stayed in the Rockies’ coffers, to be spent as the team saw fit, and almost assuredly not on abuse treatment and prevention. I’m sure the beneficiary of Reyes’s donation appreciated the money, but MLB could afford to do much, much more, and has chosen not to.
What about rehabilitation? The Domestic Violence policy does provide for treatment and classes for offenders, but they don’t always seem to be all that effective. Take Derek Norris’s comments after he returned from his suspension, for example:
Asked Derek Norris about what he’d tell those that are upset the Tigers would sign someone with a domestic violence suspension. His response: “People are entitled to their opinions… whatever doesn’t kill you make you stronger.”
— Katie Strang (@KatieJStrang) February 14, 2018
Steven Wright, even after being arrested for domestic assault and suspended under the policy, continued to deny that he did anything more than argue with his wife. Then there’s Aroldis Chapman, who was accused of choking his girlfriend and firing off a gun in his garage, and said this:
“I’m apologizing because of the use of the gun; it was bad judgment on my part,” Chapman said through a Spanish translator on Wednesday. “But I also want to say that I never hurt my girlfriend. I want this to be very clear.”
If we assume the goal of rehabilitation is to alter the offender’s behavior so as to prevent a recurrence, these instances — in which offenders deny the occurrence of the incident occurred or frame themselves as the victim — would appear to fall short. As for Chapman, he appears to believe that the use of the gun was the problem, which might be worse. In any event, it’s hard to argue any of the three have really been rehabilitated, at least based on their public comments.
So there’s a real question to be asked regarding what the point of MLB’s domestic violence program is, because right now it doesn’t seem to have one. And there are no quick fixes here. A zero-tolerance ban for life could endanger victims, as Southworth points out. But there’s a flip side to that, which is that the wealth and opportunities facilitated by a major-league career probably aren’t best served to benefit domestic abusers, and unrepentant domestic abusers seem to create an even bigger problem. Perhaps larger fines, with the money being paid to domestic-violence charities, might represent a positive development. Changing the suspensions to mirror those of PEDs — so that offenders can’t play in the playoffs — could be another. If offenders were treated as harshly by writers as PED users, that would likely also serve to change the culture. In any case, the current policy doesn’t appear yet to have satisfied the basic requirements of an ideal punishment.
Sheryl Ring is a litigation attorney and General Counsel at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.