you may have written a definition that looks like this:

The term "domestic violence" means the infliction of physical injury by an individual upon his spouse, or by an individual upon one with whom he is (or was) living as man and wife (whether or not the relationship is so recognized under state law).

To test whether this dedicated transliteration of the specification really works, you must apply it to some hard cases. First, take the case of the man and woman, both married but not to each other, who are living together. If the man injures the woman is she eligible for services?

You will find that the definition does not supply a clear answer. The phrase, "living as man and wife (whether or not the relationship is so recognized under state law)", may contemplate a domestic arrangement that, except for the statutes of particular states, would be a common law marriage. If so, it is too restrictive. From the general tenor of the specifications, you can guess that the program is supposed to serve victims of relationships that would not be common law marriages regardless of state law.

Also, what does "living as man and wife" mean, if the individuals do not hold themselves out as man and wife and could not legally marry? Does it mean living together and engaging in sexual relations? If so, would it include an incestuous relationship? If incestuous relationships are included why are homosexual relationships excluded (as they seem to be)? Is this a moral preference?

Does the definition cover a man who abuses his wife verbally, if a physician claims that this abuse has caused the wife to develop an ulcer?

And how does this definition handle services to children who, although not the subject of domestic violence, are taken by an abused wife when she flees home?

First, you have to find out how the authors of the specifications want these questions answered. Assume you returned to them with a dozen cases, which you will find at Appendix J, devised with the objective of refining the concept of domestic violence. Here is a summary of what the resolution of those cases teaches:

• The underlying theme of the specifications is to provide services-not merely shelter, but counseling and other non-cash assistance as appropriate to assist women who are psychologically dependent upon men who abuse them.

• The strength of this dependency cannot be gauged, in all cases, by the legal character of a given relationship, the recency of injury, or the recency of cohabitation.

• A person should not be required to answer questions about her sex life as a condition of receiving services under the proposal.

On the other hand, the bill is essentially concerned with wife-beating, not psychological abuse, even though psychological abuse may have physical consequences.

• Finally, the bill's services are not to be available for homosexual or incestuous relationships.

Now revise the definition of domestic violence. You will simplify your task if you provide services to children of victims of domestic violence, who are to be eligible for services in particular circumstances, by an explicit provision. Then it will not be necessary to include them in the definition as individuals who may be subject to domestic violence. One possible definition is this:

The term "domestic violence" means the threat or infliction of physical injury upon an individual by one to whom that individual is or has been married, or with whom that individual is or has been living; except that the term does not include a threat or infliction of injury by an individual upon another of the same sex, or by an individual to whom the threatened or injured individual bears a relationship described in paragraphs (1) through (8) of 26 U.S.C. 152(a); and except that the term does not include an injury that is not the result of physical abuse.

The reference to 26 U.S.C. 152(a) is a shorthand way of excluding violence between family members who are not husband and wife.*

In Fundamentals of Legal Drafting, Reed Dickerson recommends a technique known as "tabulation" to assist the draftsman to examine the structure of his draft. An example of the tabulated version of the domestic violence definition is at Appendix K.

In testing the Appendix J cases against the revised definition, you will notice that, at the margins, the definition is somewhat vague. Cases 5 and 6 are probably covered, but surely would not be if the

*To improve readability, I might prefer to divide the definition into two sentences: the first to state the rule ("The term 'domestic violence' means . . . she is, or has been, living."); the second to announce the rule's exceptions ("The term does not include a threat . . . 26 US C. 152(a); or an injury that is not the result of physical abuse"). This would be at variance, regrettably, with common drafting practice. If a rule is subject to an exception, most draftsmen feel obliged to warn of the exception in the sentence that states the rule. If the exception is extensive, the rule may be introduced like this: "Except as provided in [cross reference] . . .". Otherwise, the exception is included in the rule itself, as in the definition in the text. If I had divided the definition into the two sentences suggested, the rule, contained in the first sentence, would appear unqualified to those who neglected to read on. Or, to explain it conceptually, the interpretation of the first sentence would depend upon its being "construed" in light of the second sentence. The definition in the text does not require such construction.

man (in case 5) or the woman (in case 6) had a separate fixed address.

Also, the definition may pick up some "commune" cases: that is, women who have been struck by men with whom they have no relationship that goes beyond the sharing of a common abode. This is probably a small price to pay if the alternative is to require a female applicant for services to attest to an illicit relationship as a condition of eligibility. A draftsman cannot anticipate all conceivable cases. The harder he tries, the more likely it is that he will introduce into his bill impediments to sensible administrative judgments. Also, the need for anticipation depends upon the likelihood and extent of abuse. If the bill were one that distributed large sums of money to domestic violence victims, a more exacting definition might be required.

The more elaborate a legislative requirement, the more complex the administrative procedure needed to give it effect. Unfortunately, the more complicated the administrative procedure, the less likely that it will work as the draftsman envisioned it. Peter Drucker, in his Adventures of a Bystander, attributes to the financier Ernest Freedberg the remark, "Everything has to be moron-proof, for work is always in the end done by morons."

§3.6. Provisions to authorize appropriations. Provisions authorizing appropriations respond to the singularities of the rules of the Senate and the House of Representatives, the proceedings of which are not much studied in law school. For this reason they usually puzzle the neophyte to government. He finds it curious that Congress need pass a law in order to empower itself to pass a law. The key to this enigma is the rule against appropriating amounts other than to fund activities authorized by law prior to the appropriation. Rule XXI, cl. 2, of the House of Representative provides, in pertinent part:

No appropriation shall be reported in any general appropriation bill, or be in order as an amendment thereto, for any expenditure not previously authorized by law, unless in continuation of appropriations for such public works and objects as are already in prog

ress.

A further source of confusion is in the absence of authorizing provisions from the older statutes, particularly regulatory statutes such as the Federal Food, Drug, and Cosmetic Act. That is because the original purpose of inserting them-they grew up in connection with grant-in-aid statutes-was not to authorize the appropriation of some amount. It was to limit the amount that might be appropriated in their absence. They were intended to allow the authorizing committees of Congress to set an upper limit on sums approved by congressional appropria

tions' committees. These sections are usually captioned, "Authorization of Appropriations". A more accurate title for them would be, "Limitation of Appropriations Authorized", inasmuch as, in their absence, appropriations would be implicitly authorized indefinitely without limit. Once such a provision is included in a statute, however-the authorization being for a fixed period and a finite amount-the provision means that, unless it is extended, no further appropriations are authorized for that statute after the period has expired.

An appropriations Act creates budget authority, i.e., the right of a government agency to make financial commitments, only for the fiscal year (or years) to which the Act applies. Therefore, although authorization provisions occasionally call for appropriations "without fiscal year limitation"-so-called "no-year money"-authorization provisions are usually written in terms of fiscal years. Before 1974, a common form of the accepted langauge was, "There are authorized to be appropriated [insert $ amount or the phrase 'such sums as may be necessary'] for the fiscal year ending June 30, 19.., and for each of the succeeding .... fiscal years." The Congressional Budget Act of 1974, which changed the fiscal year of the federal government to a year beginning on October 1, also added to the law a definition of the fiscal year. The current form of language authorizing appropriations, therefore, should no longer speak of appropriations for the "fiscal year ending June 30, 19.." but rather of appropriations for "fiscal year 19..”.

Although an explanation of the concepts underlying the Budget of the United States is beyond the scope of this book, a draftsman needs to ground himself in them if he is to translate his clients' decisions on such esoterica as "obligations", "outlays", "advance appropriations", "advanced funding", "forward funding", "full funding", "extended availability", and so on. You should obtain a copy of the Budget and the Budget Appendix-as of this writing, the Budget for fiscal year 1981-and study, in the Budget, part 7, "The Budget System and Concepts" and, in the Appendix, part V, "Other Materials".

A common budget-related source of confusion, not discussed in the Budget or its Appendix, however, is the so-called "entitlement" program. There are at least two types of government program to which you may hear this appellation applied. One is a program in which a recipient is legally entitled, upon meeting certain conditions, to a statutorily determined share of the program's appropriation. Congress remains legally free to vary that appropriation, from year to year, as it pleases.

The other entitlement program is one, such as the AFDC program to be discussed at $3.8, in which the recipient--in AFDC, the state-is legally entitled to a statutorily determined amount of federal financial assistance-in AFDC, reimbursement for a fixed proportion of state expenditures for welfare beneficiaries and program administration-whether or not the necessary funds have been appropriated. In this second case, Congress is legally obliged to appropriate the required amounts for so long as the authorizing statute remains in force.

Congressional funding of this second type of program is analogous to its "liquidation" of amounts obligated under a government contract. To illustrate, assume that a law authorizes a federal official to enter into a contract with a private party requiring federal payment to that party of some amount. In such a case, the party's claim against the government under the contract is for the payment of a debt of the United States. The Congress is constitutionally obliged to "liquidate" the debt by appropriating whatever may be required.

You must keep this distinction in mind when you are drafting an "entitlement" program in order to ensure that you understand and draft what your client intends. Also, when drafting the second kind of program-the one obligating Congress to appropriate a statutorily determined amount-consult section 401 of the Congressional Budget Act of 1974, 31 U.S.C. 1351, wihch bars Congress from considering certain types of entitlement proposals.

§3.7. Exercise in drafting an appropriations authorization and allotment formula. Draft an appropriations authorization for the domestic violence bill to conform to the specifications. Then draft a section to allot the appropriation among the states. Compare your work to sections 4 and 5 of the draft bill at Appendix M.

$3.8. State plan provisions. State plan provisions give federal statutes a bad name. The state plan requirement for the program of Aid to Families with Dependent Children, title IV-A of the Social Security Act, consists of a single sentence that is upwards of 2,500 words long and covers eight pages of title 42 of the annotated United State Code. It contains 23 numbered paragraph (which, for some reason, the U.S.C.A. does not tabulate), and over 40 additional subdivisions. A less mind-boggling sample of the genre is included at Appendix L.

The state plan at Appendix L does lack a maintenance-of-effort provision, which is called for by the domestic violence specifications at Appendix A. One type of such provision is section 303 (a) (9) of the Comprehensive Alcohol Abuse and Alcoholism

Prevention, Treatment, and Rehabilitation Act of 1970 (42 U.S.C. 4573 (a) (9)):

(9) provide reasonable assurance that Federal funds made available under this part for any period will be [used so] as to supplement and increase, to the extent feasible and practical, the level of State, local, and other non-Federal funds that would in the absence of such Federal funds be made available for programs described in this part, and will in no event supplant such State, local, and other non-Federal funds. Ask yourself how a federal administrator would be able to tell if a state violates this assurance.

A second provision, which is often included in state plans, requires the plan to provide that the Comptroller General of the United States or his duly authorized representatives shall have access for the purpose of audit and examination to the records that the Secretary requires the state to keep under the plan.

If the program is one that supports construction, it was customary in the past to include in the state plan provisions one requiring the state to provide reasonable assurance to the Secretary that all laborers and mechanics employed by contractors or subcontractors in the performance of work on a project will be paid wages at rates not less than those prevailing on similar construction in the locality as determined by the Secretary of Labor in accordance with the Act of March 3, 1931 (40 U.S.C. 276a276a-5, known as the Davis-Bacon Act). If a DavisBacon assurance is to be used for a new program, the state plan provision should also contain language that gives the Secretary of Labor, with respect to those labor standards, the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (15 F.R. 3176; 5 U.S.C. Appendix) and section 2 of the Act of June 13, 1934 (40 U.S.C. 276c). Reorganization Plan 14 vests in the Secretary of Labor responsibility for prescribing appropriate standards, regulations, and procedures that federal agencies must observe on federal construction. The Act of 1934 gives the Secretary of Labor similar responsibility over contractors and subcontractors employed to construct federal buildings or federally financed public works. See, for example, section 1604 (b) (1) (H) of the Public Health Service Act (42 U.S.C. 3000-3 (b) (1) (H)).

You should be aware that the subjection of federally assisted construction to the Davis-Bacon Act automatically subjects it, also, to the Contract Work Hours Standards Act, by virtue of a provision (section 103 (a) (3) (40 U.S.C. 329 (a) (3)) of the latter Act.

$3.9. Exercise in drafting a state plan provision. Draft a state plan provision conforming to the do

mestic violence specifications at Appendix A (as clarified by Appendices C and D). Compare it to section 6 of the draft bill at Appendix M.

§3.10. Provisions authorizing applications for assistance.

1. State plan programs. In some state plan programs, such as AFDC, the statute merely directs the Secretary to use appropriated funds to reimburse program expenses, in a ratio determined by the statute's formula, incurred by states that have on file with the Secretary an approved state plan. This structure makes sense for a program in which all individuals in the state who meet established standards of eligibility will receive certain benefits. To the extent that these standards and benefits are in the discretion of the state, the state must be required to set them forth in its plan. Once it does so, the standards and benefits are established until the state formally amends its plan.

If, however, the program's scope is more limited and a state is expected to use the federal funds for services that will not be made available throughout the state, the state plan will not adequately reveal how the state intends to use its federal funds for a particular grant year. Such a program will often be drafted to require the state to file an annual application for grant funds that is in conformity with, but in addition to, its previously approved state plan. The application will have to set out such things as the budget covering the year for which the grant is sought, the objectives of each project, whether or not the state will charge fees for a project's services, and other information on how the state intends to conduct the program for the grant year.

The application's purpose could also be served by an after-the-fact reporting requirement, particularly if the program is one in which the Secretary has no discretion but to pay to a state that has submitted an approved plan its share of the program's appropriations. In other words, if the Secretary lacks discretion to determine how much to pay to a state on the basis of what the state's application shows that it proposes to do with the payment, there is no reason to have an annual application; amounts could as well be obligated merely under the plan, itself.

2. Other assistance programs. In federally assisted programs not involving a state plan, the provisions for application to the Secretary for assistance cover roughly the same ground as state plan provisions. The application will be approved only if it contains assurances of the same general kind as those required of the state under a state plan program. Because non-construction project grant programs that assist public and nonprofit private groups are the small change of the grant field, the statutory pro

visions governing project applications can appropriately be kept simpler than state plan requirements, and a great deal may be left to the Secretary's regulations. To do this, you will want those provisions to confer on the Secretary an explicit authority to specify the form and contents of project applications.

§3.11. Exercise in drafting project grant and application provisions. Draft the project grant and application provisions called for by the domestic violence specifications for the research and demonstration program. Compare your provisions with sections 7 and 8 of the draft bill at Appendix M.

$3.12. Administrative provisions. Many freestanding bills devote a separate section, usually captioned either "General Provisions" or "Administrative Provisions", to authorities or requirements that apply to all or some group of programs in the bill. In the case of bills to be administered by an executive department, chapter 3 of title 5 of the United States Code contains a range of general authorities, which the bill need not restate. If the bill is one that establishes an administrative agency, however, you will have to include these authorities. For a model containing a number of them, consult section. 27(b) of the Consumer Product Safety Act, 86 Stat. 1228 (15 U.S.C. 2076(b)).

§3.13. Exercise in drafting administrative provisions. Draft those administrative provisions that should apply generally to programs in the domestic violence bill, but do not duplicate authorities conferred on the Secretary elsewhere in the bill. Compare your effort with section 9 of the draft bill at Appendix M.

$3.14. Civil and criminal penalty provisions and other sanctions.

1. Noncompliance with program conditions. Section 6(c) of the domestic violence bill at Appendix M illustrates a typical sanction for state noncompliance with a program condition: termination of the program after opportunity is given to the State for what is known as a "conformity" hearing. Some statutes, for example the AFDC law (see section 403 (g) of the Social Security Act, 42 U.S.C. 603 (g)) and the Medicaid law (see section 1903 (g) of the Social Security Act, 42 U.S.C. 1396b (g)), impose for specified nonconformance penalties substantially less than termination of all assistance. In the absence of provisions to the contrary, however, the federal government may not recover money expended by the state for proper program purposes, even if the state expenditure is contrary to procedural require

ments.

No special provision is needed to recover amounts expended by the state for purposes that the Secre

tary determines are outside the scope of the program. The amounts are simply ineligible for federal financial participation. Nevertheless, if the state has tapped its advance of federal program funds in order to make expenditures to which the federal auditors take exception, the Secretary cannot offset the amount of the "audit exception" against future federal payments to the state unless the statute contains a provision allowing him to do so.

Finally, under the federal common law of grant administration, the court will entertain a suit by the grantor agency to compel a state to comply with its assurances and other plan conditions under a federal program for so long as the state remains in the program.

The domestic violence specifications are silent on penalties; therefore you, as the draftsman, are obliged to offer alternatives to the policy officials, along with some guidance as to their implications. For example, in mentioning the option of a reduced penalty, you would probably observe that, because the maximum grant to a state is quite small to begin with, the sanction would be unlikely to deter state noncompliance.

2. Civil and criminal penalties. Specifications are usually written by people not especially conversant with criminal law. You may, as a result, find specifications obscure when they attempt to describe conduct that is to be declared unlawful or the associated penalties. When delineating conduct to be declared unlawful, a central concern is the malefactor's state of mind: is it to be an element of the offense and, if so, how is it to be characterized? Although you may occasionally see variations, there are three main choices:

(1) An offense may be established without criminal intent. This is the strict or absolute criminal liability imposed by the Federal Food, Drug, and Cosmetic Act. The prosecutor need only prove that an employee of a drug company, for example, committed the proscribed acts on the company's behalf, in order for the prosecutor to make a prima facie case against the controlling corporate officials. It is no defense that the officials did not condone-and in fact were ignorant of the employee's conduct. The typical way to draft a strict liability provision is illustrated by section 368 of the Public Health Service Act, 42 U.S.C. 271, which reads, "Any person who violates any [quarantine] regulation ... shall be punished . . .”.

(2) An offense may require a "generalized" criminal intent. This merely means that the prosecutor must show that the individual intended to commit the acts that he in fact committed; or, put differently, that the defendant personally committed or aided or counseled in the commission of the prohibited acts. A statute usually signals this kind of intent by characterizing the prohibited conduct as action that is performed "willfully" or "knowingly". Unfortunately, there is no

generally acceptable standard for expressing this state. of mind. To quote from the Senate Judiciary Committee's report on a recently proposed bill to reform the criminal code, Rept. No. 95-605, Part 1, 95th Cong., at p. 55:

Present Federal criminal law is composed of a bewildering array of terms used to describe the mental element of an offense. The National Commission's consultant on this subject identified 78 different terms used in present law. These range from the traditional "knowingly," "willfully," and "maliciously," to the redundant "willful, deliberate, malicious, and premeditated," and "knowingly and willfully," to the conclusory "unlawfully," "improperly," and and "feloniously," to the self-contradictory "willfully neglects. No Federal statute attempts a comprehensive and precise definition of the terms used to describe the requisite state of mind. Nor are the terms defined in the statutes in which they are used. Instead the task of giving substance to the "mental element" used in a particular statute has been left to the courts.

Current reform efforts, as exemplified by the Model Penal Code and S. 1437, 95th Congress, attempt to reduce the terms describing the requisite state of mind to four: intentional, knowing, reckless, negligent. The term "intentional" is defined to correspond essentially to the concept of specific intent, described in the following paragraph. The term "knowing" corresponds to a generalized criminal intent, i.e., a state of mind in which an individual is aware of the nature of his conduct but does not necessarily seck a particular result. "Reckless" would mean disregard by a person of a risk of which he is aware; "negligent", a person's disregard of a risk of which he reasonably ought to have been aware.

(3) Finally, there are offenses that call for a specific criminal intent. An example is section 1107 of the Social Security Act, 42 U.S.C. 1307, which reads, in pertinent part, "Whoever, with the intent to defraud any person, shall make . . . any false representation . . . The prosecutor must prove beyond a reasonable doubt both that the defendant made a false representation, and that he did so for a fraudulent purpose.

Sometimes specifications call for imposition of a penalty on certain conduct only if an individual engages in it with knowledge that a law or regulation prohibits it. As a practical matter, unless a prosecutor can show, in such case, that the defendant, prior to the alleged infraction, had been warned about the unlawfulness of his conduct, the prosecutor's burden of proof cannot be met. The draftsman must call this problem to the attention of the policy officials.

Penalties are of two types: criminal and civil. With respect to criminal penalties, your general stock of information should include an awareness that significant procedural differences attend the characterization of an offense, in the federal system, as a misdemeanor or a felony. Under 18 U.S.C. 1, any offense punishable by death or imprisonment for a term exceeding one year is a felony; any other