Читать книгу Decriminalizing Domestic Violence - Leigh Goodmark - Страница 11

1. Intimate Partner Violence Is . . .

A Criminal Justice Problem?

Ensuring that the state treated intimate partner violence like any other crime was a cornerstone of the early antiviolence movement. When police and prosecutors were slow to exercise their power to protect women subjected to abuse, the antiviolence movement used litigation, research, and the political process to leverage state engagement via the criminal legal system. Criminalization brought tangible benefits to some people subjected to abuse. But the criminal legal system has failed to deter intimate partner violence, and the harms of criminalization are significant enough to justify abandoning the use of the criminal legal system in cases of intimate partner violence.

A BRIEF HISTORY OF CRIMINALIZATION

Although intimate partner violence was criminalized as early as 1641 in the Massachusetts Bay Colony, levels of state intervention have varied over time. By the 1970s the criminal legal system was loath to intervene into what it saw as private family disputes. Police officers were trained not to make arrests in intimate partner violence cases. Police instructional manuals suggested that officers tell men who had abused their partners to take a walk around the block to cool down. Even if police had probable cause to make an arrest, police officers in most states could not make a warrantless arrest in an intimate partner violence case. If an arrest was made, the likelihood of prosecution was low.

States received federal funding related to intimate partner violence in the 1970s, but that funding was not primarily intended to shore up the criminal legal response. Instead, the Law Enforcement Assistance Administration provided funding to a number of pilot projects intended to help law enforcement clarify their role in responding to intimate partner violence in relation to the efforts of community organizations and social services providers. That funding disappeared in 1980; new funding for the criminal legal system would not be authorized until the passage of VAWA in 1994. VAWA would, for the first time, express a clear federal preference for law enforcement to lead the response to intimate partner violence.

Beginning in the late 1970s, antiviolence advocates sought to shift the public perception of intimate partner violence, making the case that intimate partner violence should be treated like any other crime. New criminal laws were not, strictly speaking, necessary to realize this goal; those who used violence could have been arrested and prosecuted under existing assault laws, for example. The real problem was the failure of police and prosecutors to enforce the laws. Frustrated with police inaction, feminist lawyers sued police departments in New York City and Oakland, California, over their “arrest-avoidance” policies. As a result of Bruno v. Codd, police in New York City promised to respond swiftly to intimate partner violence calls, make an arrest whenever they had reasonable cause to believe that a felony had been committed or a protective order had been violated, and remain on the scene to prevent further violence against the person seeking protection. Laurie Woods, the lawyer who filed Bruno v. Codd, believed strongly that arrest and prosecution were necessary to challenge the social conditions that permitted intimate partner violence to flourish and saw criminalization as preferable to any other response to intimate partner violence. In response to a similar lawsuit filed in California, Scott v. Hart, the Oakland Police Department rescinded its arrest-avoidance policy and agreed to treat intimate partner violence like other crimes. Pauline Gee, who brought the California case, saw state intervention as neutralizing the power imbalances between men and women, making the criminal system a “path to women’s liberation.”¹

The failure to protect women subjected to abuse was becoming increasingly expensive for cities. On June 10, 1983, Tracey Thurman’s husband, Charles, stabbed Tracey repeatedly in the chest, neck, and throat; after police arrived at the scene, Charles dropped the bloody knife and kicked Tracey in the head. Charles ran away, returned, dropped their toddler son on top of Tracey, and kicked Tracey in the head a second time despite the presence of police. Charles continued to threaten Tracey while police looked on. Only after Charles approached Tracey while she was lying on a stretcher did police arrest him. Tracey had repeatedly called police for protection prior to the June 1983 assaults. In 1984 Tracey Thurman won a multimillion-dollar judgment against the city of Torrington, Connecticut. Concerned about similar litigation, jurisdictions throughout the United States looked for innovative police practices that would shield them from liability. They found a model in Oregon’s 1977 law requiring police to make arrests in intimate partner violence cases when the officer had probable cause to believe that an assault had been committed or when a person holding a protective order feared imminent serious harm—the precursor to mandatory arrest laws.

Research seemed to support the intuition that changes to arrest policy in cases involving intimate partner violence would prevent further lawsuits. In studies in 1981 and 1982 in Minneapolis, researchers Lawrence Sherman and Richard Berk found that arrest was associated with lower rates of recidivism by men who abused their partners. Despite Sherman’s warning that the research should be replicated before conclusions could be drawn about the effectiveness of mandatory arrest, antiviolence advocates lobbied hard for the adoption of such policies, and municipalities across the United States quickly adopted them.² Sherman’s warning was prescient. Later research on the effects of arrest policies was mixed. Replication studies found that mandatory arrest laws had deterrent effects in some locations, no effect in other locations, and contributed to increases in violence in others. Nonetheless, mandatory arrest policies would be bolstered in 1994 by the passage of VAWA, which initially required that states enact mandatory arrest policies as a condition of receiving federal funding under the act.³ As of 2014, twenty states and the District of Columbia had enacted mandatory arrest policies.

Antiviolence advocates next turned their attention to low prosecution rates. Prosecutors complained that they could not prove their cases without the cooperation of those who had been abused. Witnesses often refused to testify, however, citing fear of retaliation by their partners, concern about exposing their partners to criminal liability, or opposition to having their partners incarcerated, because incarceration would deprive them of economic, emotional, parenting, and other forms of support. Prosecutors, therefore, would not bring intimate partner violence cases to court. No-drop prosecution was among the policies designed to address this problem. In no-drop prosecution jurisdictions, lack of victim cooperation did not prevent prosecutors from filing cases. Instead, they pursued any case where the evidence was strong enough to litigate, with or without the willing assistance of the person subjected to abuse. In soft no-drop jurisdictions, prosecutors provided inducements (like support services) for people to testify but did not compel their participation. In hard no-drop jurisdictions, prosecutors used whatever means necessary to make their cases, including subpoenaing unwilling witnesses, asking that subpoenas be enforced by arresting witnesses to ensure their attendance at court, and, in extreme cases, imprisoning people subjected to abuse as material witnesses prior to trial. By 1996 two-thirds of prosecutors’ offices had adopted (primarily soft) no-drop policies.

Antiviolence advocates did not advance this carceral agenda in a vacuum. Efforts to increase the criminalization of intimate partner violence paralleled the ascendancy of neoliberalism as the guiding philosophy for U.S. social policy. Neoliberalism, narrowly defined, is a system of economic ideas and policies that emphasizes small government and market-based solutions to social and economic problems. Neoliberalism has (perhaps counterintuitively) spurred the use of criminal law, with mass incarceration replacing social welfare policy as the response to structural economic and political issues. Antiviolence reformers took advantage of the growing interest in and money for carceral responses, advocating for increased funding and training for police, prosecutors, and courts, as well as for laws and policies that prioritized the criminal legal response to intimate partner violence.

By the time VAWA was adopted in 1994, the antiviolence movement’s embrace of the criminalization agenda was clear. VAWA provided funding incentives that firmly entrenched that agenda. VAWA allocated hundreds of millions of dollars for training and support of courts, police, and prosecutors, creating a powerful motivation for law enforcement to take the helm of antiviolence efforts. VAWA also created monetary incentives for antiviolence advocates to collaborate with law enforcement, committing the antiviolence movement more firmly to the criminal legal response. By 2003 many in the antiviolence movement agreed with George W. Bush when he stated that “government has got a duty to treat domestic violence as a serious crime, as part of our duty. If you treat something as a serious crime, then there must be serious consequences, otherwise it’s not very serious. . . . Our prosecutors are doing their job. They’re finding the abusers, and they’re throwing the book at them. And that’s important.”⁴

THE BENEFITS OF CRIMINALIZATION

Criminalizing intimate partner violence does offer benefits to some people subjected to abuse. Intervention by the criminal legal system can give people distance from abuse. Police intervention can interrupt a violent incident and remove the offender from the scene.⁵ Courts can issue criminal stay-away orders to prevent unwanted contact between people subjected to abuse and their partners both before and after prosecution. Successful prosecution can ensure that those who use violence enter batterer intervention programs as a condition of their sentences, which may lead to changes in behavior. Prosecution can send the message that people are serious about ending the abuse; even the threat of prosecution can give people subjected to abuse some leverage with their partners. The criminal legal system can provide resources, including victim-witness advocates and crime victim compensation funds, to people subjected to abuse. Incarceration and other forms of monitoring can provide a respite that affords people subjected to abuse peace of mind and the ability to implement short- and long-term safety plans.

Ensuring accountability for illegal behavior is another goal of criminal interventions. Accountability—the belief that those who abuse should be held responsible for their behavior by experiencing negative consequences through punishment, preferably via the criminal legal system—is one of the central tenets of the antiviolence movement. Arrest, prosecution, conviction, and incarceration are all employed to that end. Using the criminal legal system to address intimate partner violence can also underscore the state’s condemnation of intimate partner violence, a stance that both vindicates the experiences of the individual subjected to abuse and may help to change community attitudes about the acceptability of intimate partner violence.

Finally, criminalization can satisfy the desire for retribution among those who define justice through punishment. Retribution requires that a wrongdoer receive a punishment befitting the crime; wrongs are righted through the offender’s suffering. Punishment expresses society’s condemnation of the act being punished and reinforces societal norms repudiating such behavior. Retributive justice delivered through the state also prevents individuals from seeking revenge. If an offender is arrested, convicted, and given some punishment that the person subjected to abuse deems proportionate to the harm suffered, that person’s justice needs may be met. Because the state has a monopoly on legal punishment in the United States, only the criminal legal system has the potential to meet the justice goals of those who define justice retributively.

CRITIQUES OF CRIMINALIZATION

But in the past several years the idea of regulating behavior through criminalization has been seriously questioned, both generally and in the specific context of intimate partner violence. Criminalization has been called a “remarkable” failure, “perhaps the greatest in American history.”⁶ Overcriminalization has driven disproportionately high incarceration rates in the United States, particularly for marginalized groups. Excessive criminalization renders criminal penalties meaningless. And criminalization cannot solve America’s social problems.

Hyperincarceration is a relatively new phenomenon in America. Spurred by “tough on crime” rhetoric, legislators have significantly increased both the number of crimes and the duration of sentences over the past forty years. Between 1970 and 2010 the state and federal prison population grew from 196,000 to 1.4 million people. Between 2010 and 2016 that number increased to 2.3 million incarcerated Americans, and more than 8 million living under some form of state control (for example, in jail or prison, on probation or parole, or serving community sanctions). The United States incarcerates 730 of every 100,000 people, the highest rate in the world. One in three African American men, one in seven Latino men, and one in seventeen white men spend time in prison during their lifetimes. Lesbian, gay, bisexual, transgender, and gender-nonconforming people are also jailed at disproportionate rates.

Hyperincarceration is problematic not just because of the sheer number of people it affects, but also because of the problematic consequences of incarceration. The impact of hyperincarceration ripples out into families and communities, as political scientist Marie Gottschalk explains: “The carceral state directly shapes, and in some cases deforms, the lives of tens of millions of people who have never served a day in jail or prison or been arrested. An estimated eight million minors—or one in ten children—have had an incarcerated parent. . . . Millions of people reside in neighborhoods and communities that have been depopulated and upended as so many of their young men and women have been sent away to prison during what should be the prime of their lives.”⁷

The excessive use of criminalization to address social problems has decreased the expressive and actual effectiveness of criminal punishment while at the same time shielding policymakers from having to confront the underlying issues driving criminality. Criminalization can make lawmakers feel as though they have done something to address a problem, but legislators do not, by and large, analyze the effectiveness of those actions in any meaningful way. Criminalization is a “one-way ratchet”—lawmakers are unlikely to revisit or rescind criminal laws that have already been enacted, regardless of their impact or lack thereof. As a result the United States is “criminalizing, recriminalizing, and overcriminalizing all forms of conduct, much of it innocuous, to the point of erasing the line between tolerable and intolerable behavior.”⁸ When everything is criminal, it is hard to know what is truly wrong, or how to prevent offending.

Finally, criminalization is an ineffective response to the intractable social problems faced by the United States. In recent years the political system has failed to allocate resources to pressing social problems like poverty, homelessness, and mental illness. The neoliberal turn in American public policy, and the resulting dismantling of the welfare state, left many communities struggling and underresourced. Rather than provide low-income communities with social services, the U.S. government has increasingly poured resources into the criminal legal system, using that system to address the consequences of unresolved social problems. As activist Angela Davis has observed, incarceration is like magic, making societal problems seem to disappear.⁹ But criminal law is poorly suited to solve these types of problems, rooted as they are in both individual social circumstances and larger systemic contexts.

Critiques of the Criminalization of Intimate Partner Violence

At the first Incite! Women of Color Against Violence conference in 2000, Davis linked the general critique of criminalization with the specific critique of the criminalization of intimate partner violence. She stated, “The major strategy relied on by the women’s anti-violence movement of criminalizing violence against women will not put an end to violence against women—just as imprisonment has not put an end to ‘crime’ in general.”¹⁰

Social work professor Mimi Kim has described the attempts of antiviolence advocates to harness the power of the criminal system as “the carceral creep”—“a dance of contentious politics initially engaged, provocatively and boldly, by feminist social movement actors with clear intentions to dominate law enforcement, oft times by subversive means.”¹¹ Some of those feminists understood that engaging the criminal system posed real dangers, particularly for communities of color, and were concerned that focusing on the criminal legal system would divert attention from other needs. Those concerns were outweighed, however, by the belief that advocates could control law enforcement’s actions and use the criminal system to their own ends. But, Kim explains, those hopes were naïve: “As law enforcement targets engage in this dance, first as recalcitrant partners and eventually as more active participants, they begin to find confidence and legible roles in their position as law enforcement in this new dance of contention. . . . Social movement actors and institutions in civil society, once the lead in this dance of contention, eventually become the subordinate partner in a dance now directed and dominated by the goals, political logics and institutions of law enforcement.”¹²

The critique of the criminalization of intimate partner violence tracks the general critique in a number of ways. Criminalizing intimate partner violence is one example of the increasing tendency to address social problems by “governing through crime.” As law professor Jonathan Simon explains, “Domestic violence has emerged over the last three decades as one of the clearest cases where a civil rights movement has turned to criminalization as a primary tool of social justice.”¹³ Moreover, both critiques are concerned with the disproportionate impact of criminalization on men of color. Criminalization of social problems like intimate partner violence has contributed to the exponential growth in men of color’s rates of involvement with the criminal legal system. In a study of Milwaukee County, Wisconsin, for example, men of color represented 24 percent of the population but 66 percent of the defendants in intimate partner violence cases, a disparity attributed in part to policing practices. Most intimate partner violence offenses are prosecuted as misdemeanors, and rates of misdemeanor prosecution are much higher among men of color. Arrest and conviction may have particularly negative consequences for men of color; finding employment after incarceration is difficult for all men, for example, but much more so for men of color.¹⁴

There are, additionally, a number of concerns that are specific to the criminalization of intimate partner violence. First, criminalization has harmed women, originally the intended beneficiaries of these policies. Since the inception of more stringent arrest policies, for example, arrest rates among women have increased significantly. At least part of that increase, writes criminologist Alesha Durfee, “is directly attributable to the implementation of mandatory arrest policies and not simply an increased use of violence by women in intimate relationships.”¹⁵ Dual arrests—the arrest of both a woman and her partner—have also increased substantially both in the United States and Canada, again without evidence that women’s use of violence has increased. Women who are arrested are likely to have been subjected to abuse and to have been physically assaulted, injured, or threatened. If women were committing acts of violence at frequencies commensurate to the rates of arrest, these policies might be justified by formal equality arguments—women and men should face the same consequences for their use of violence. But the research instead suggests that it is women subjected to abuse who are being penalized by arrest policies without justification. Anecdotal evidence supports the research. A Baltimore woman called police to report that her husband had strangled her. One officer responded. Finding the husband asleep, the officer left without taking a report or making an arrest. Later that day the husband left the residence. When he attempted to force his way back into the house, the woman pushed him away. A neighbor called 911. Several police officers responded and arrested the woman. She spent the night in jail, faced criminal charges, and almost lost her job. LGBT-identified people may also be at risk. Connie Burk, executive director of the NW Network of Bi, Trans, Lesbian and Gay Survivors of Abuse, an antiviolence advocacy organization in Seattle, notes that in one year, fully half of their clients who had contact with the police were arrested.¹⁶

Criminalization has also increased state control over women through the intervention of the child abuse and neglect system. Increased police involvement in families experiencing intimate partner violence leaves mothers who are subjected to abuse at greater risk of being reported to child protective services agencies for failing to protect their children from exposure to that violence. Some police departments require officers to make a report to child protective services whenever a child is present at the scene of an incident of intimate partner violence. Coupled with state laws and policies that hold mothers accountable for their inability to prevent their partners from being violent in the presence of their children, the increased involvement of the criminal legal system means greater scrutiny of women’s parenting and an increased likelihood that mothers will lose their children.

Operationalizing criminalization through the use of policies like mandatory arrest and no-drop prosecution has been disempowering for some people subjected to abuse. Mandatory policies deprive people of the ability to determine whether and how the state will intervene in their relationships, shifting power from the individual to the state. Law professor Aya Gruber recounts her days as a public defender: “I observed government actors systematically ignore women’s desires to stay out of court, express disdain for ambivalent victims, and even infantilize victims to justify mandatory policies while simultaneously prosecuting the victims in other contexts.”¹⁷ The unwanted intrusion by the criminal legal system, as well as the deployment of mandatory policies against the wishes of those affected, disempowers people subjected to abuse. As sociologist Laureen Snider recognized, criminalization “is a strategy that empowers officials and court systems rather than women.”¹⁸ Mandatory policies may also be counterproductive: mandatory arrest may reduce reporting of intimate partner violence among women subjected to abuse who oppose the policy.

Prosecutors misuse mandatory policies. In their zeal to secure convictions, prosecutors in Orleans Parish, Louisiana, allegedly issued illegal subpoenas compelling victims of crime, including people subjected to abuse, to meet with prosecutors. If recipients of the subpoenas, which were issued without judicial approval, failed to attend these meetings, they were threatened with fines, arrest, and imprisonment. Prosecutors followed up on these threats, seeking material witness arrest warrants for those who failed to comply with the fraudulent subpoenas, asking judges to set unreasonably high bonds, and delaying the court appearances at which people could ask to be released. Renata Singleton, for example, declined to talk to prosecutors after her former boyfriend was arrested for intimate partner violence. Prosecutors issued an allegedly fraudulent subpoena, and when Singleton failed to appear for an interview, asked the court to jail her and set bond at $100,000. During her court appearance, Singleton’s hands and feet were shackled, and she was chained to other prisoners in the courtroom. Because she could not pay the bond, Singleton was held for five days before being released. Her former partner, by contrast, paid his $3,500 bond on the day of arraignment, pled guilty to two misdemeanors, and served no time in jail.¹⁹

Marginalized people are most harmed by this overreliance on the criminal legal system. Because women of color are less likely to voluntarily engage the criminal legal system, for example, a response that relies primarily on criminalization is more likely to exclude them. Stories of police violence in the community exacerbate that reluctance to engage with the police. Crime reports in African American neighborhoods decline substantially after high-profile cases of excessive use of force by police. These decreases continue for more than one year after such incidents.²⁰ The deaths of Mike Brown, Mya Hall, Freddie Gray, Korryn Gaines, Walter Smith, Sandra Bland, Eric Garner, Charleena Lyles, and Philando Castile at the hands of police are likely chilling reporting of intimate partner violence in their communities.

Criminalization has a disproportionately negative impact on women of color because it exposes them to greater risks of state violence and control. Arrest rates of women of color for intimate partner violence are higher in mandatory arrest jurisdictions.²¹ Women of color frequently have negative, abusive, and even deadly experiences with police officers who are called to respond to intimate partner violence. In July 2016 Melissa Ventura was killed by police responding to an intimate partner violence call; in February 2015, after a fight with her girlfriend prompted a call to police, the responding officers shot and killed Janisha Fonville.²² State intervention cannot guarantee safety for women of color so long as these women both fear and are actively harmed by engaging with the state.

Overreliance on the criminal legal system has larger societal consequences as well. Criminalization shifts the responsibility for policing intimate partner violence from the community to the state. While that initial move grew out of community failures to sufficiently protect people from abuse, the result has been to relieve communities of any responsibility for or ability to hold community members accountable without resorting to the criminal legal system. Criminologist Nils Christie has argued that conflicts provide the “potential for activity, for participation. Modern criminal control systems represent one of the many cases of lost opportunities for involving citizens in tasks that are of immediate importance to them.”²³ The diversion of responsibility from community to state through criminalization has left community responses to intimate partner violence undertheorized and underdeveloped.

Criminalization also directs resources and attention away from people’s other, sometimes more pressing, needs. Government funding is often a zero-sum game: money dedicated to policing, prosecution, and punishment cannot be used to provide other crucial services and supports for people subjected to abuse. Resources that are focused on the criminal legal system could be spent providing economic and housing support or civil legal assistance to people subjected to abuse. Criminalization also allows policymakers to ignore the larger structural economic, social, and political factors that contribute to intimate partner violence.

There are a number of potential responses to the criminalization critique. Abandoning mandatory policies would address some of the problems with criminalization. Channeling resources away from the criminal legal system or creating parallel community based systems without fundamentally changing the structure of the criminal legal response to intimate partner violence is another option. Prison abolitionists, for their part, argue for changing the punishment structure, replacing incarceration with other sanctions, but not necessarily for jettisoning the criminal legal response altogether. No theorist has proposed the complete decriminalization of intimate partner violence. But examining the leading theories of criminalization and decriminalization might provide support for such a proposal.

THE THEORETICAL BASIS FOR (DE)CRIMINALIZATION

Although much has been written about theoretical justifications for punishment, criminalization itself has been less comprehensively theorized. Motivated by concerns about overcriminalization, however, a number of scholars have grappled with the question of whether and under what conditions conduct should be deemed criminal. Over the past fifty years, Herbert Packer, Joel Feinberg, John Braithwaite and Philip Pettit, Jonathan Schonsheck, and Douglas Husak have all developed theories of criminalization that are applicable to the criminalization of intimate partner violence.

The theorists share four concerns. First, only those acts that have the potential to cause harm should be criminalized. Second, there must be some reason to believe that criminalization will deter the harmful behavior. Third, criminalization of the behavior must do more good than harm. Finally, criminalization should occur only when less intrusive alternatives for preventing the behavior do not exist. The theorists all agree that assault (the primary crime charged in cases of intimate partner violence) should be criminalized. Nonetheless, their work supports the case for decriminalizing intimate partner violence.

APPLYING THE THEORIES

Harm

To justify the criminalization of intimate partner violence, the law must be either addressing or preventing a serious harm. The law of assault clearly does both. While not every assault actually causes serious harm, the types of behavior covered by assault law have the potential to inflict substantial damage. Moreover, whether prosecuted as misdemeanors or felonies, intimate partner assaults can in fact cause serious physical injuries ranging from bruising to broken bones to brain damage. New laws targeting specific forms of assault have been proposed and passed over the last several years as researchers have identified particularly harmful forms of intimate partner violence. States have increased penalties for strangulation, for example, as the medical evidence on the damage caused by strangulation and the dangerous role it plays in intimate partner violence has accumulated. Even when imperfectly or inconsistently enforced, the criminal laws targeting intimate partner violence are intended to prevent and address potentially serious harm.

Deterrence

Deterrence—the belief that criminalizing an act will decrease the likelihood that that act will be committed as a result—is central to a number of the theories. But simply citing deterrence as motivation should not be sufficient justification for criminalizing behavior. Instead, there must be some evidence that the law actually does or will deter the targeted conduct, even if the law serves other functions.

Notwithstanding the assumptions made by those who make and adjudicate the law, enacting criminal laws does not deter offenders from engaging in the behavior prohibited by those laws. The criminal law fails to deter in part because offenders are generally unaware of the legal rules designed to prevent them from engaging in criminal conduct. Moreover, even if they do know the rules, the cost-benefit analysis offenders engage in usually leads them to believe that violation of those rules is only minimally risky because the potential for punishment seems slight or remote. Finally, even if an offender both knows the rules and believes that the costs of violating those rules outweigh the benefits, that offender may still be unable to deploy that knowledge to refrain from criminal behavior. Because the evidence shows how unlikely it is that an offender will meet each of these requirements, “it will be the unusual instance in which the doctrine can ultimately influence conduct.”²⁴

The evidence that criminalizing intimate partner violence has had a deterrent effect is inconclusive. The last forty years have allowed for a kind of natural experiment testing the hypothesis that criminalization deters intimate partner violence. Prior to the late 1970s, police largely declined to charge assaults and other violations of the law involving intimate partners. Beginning in the 1980s, states began both to enforce existing criminal laws (like assault) and to pass statutes creating specific crimes of intimate partner violence. While rates of intimate partner violence dropped between 1994 and 2000, that decrease coincided with an overall decrease in the crime rate and cannot be specifically attributed to the more stringent policing of intimate partner violence. From 2000 to 2010 rates of intimate partner violence fell less than the decrease in the overall crime rate, suggesting that those who commit intimate partner violence were less deterred than criminals committing other types of crimes. Why rates have stayed high is unclear. It is certainly possible that reporting of intimate partner violence increased, for instance, leading to higher rates, though there is no research to support that proposition, and intimate partner violence remains one of the most underreported crimes.

Whatever the reason, studies have failed to find that the existence of laws specifically targeting intimate partner violence deters the behavior. Arrest in cases of intimate partner violence has effects on recidivism ranging from modest to nonexistent. For some groups of people, arrest can exacerbate violence. One study found that the relationship between arrest for intimate partner violence and future violence was attributable entirely to pre-arrest differences (for example, a prior criminal history) in risk of offending.²⁵

Studies on the deterrent effect of prosecution on future violence are mixed. Conviction may have some effect on recidivism, but the deterrent value may disappear when ongoing monitoring and other provisions to ensure accountability are not part of the sentence. Some studies find that jail time and other sentencing options have no effect on recidivism; others suggest that the imposition of more severe sanctions (jail time plus continued monitoring postincarceration) may deter future violence. There is no evidence that longer sentences for violent crimes create any greater level of deterrence.

The failure to find a strong deterrent effect as a result of the criminalization of intimate partner violence could be attributed to a number of sources. First, inconsistent enforcement of intimate partner violence laws could make it difficult to detect deterrent effects. Even in jurisdictions that mandate arrest in intimate partner violence cases, for example, those laws are inconsistently enforced. Criminalization’s lack of a deterrent effect has also been attributed to the combination of the low probability of arrest for intimate partner violence and the high probability that prosecutors will decline to bring the case forward. Without the credible threat of punishment as a result of violation of the law, deterrence is unlikely.

Second, the main measure of deterrence in cases of intimate partner violence is problematic. Deterrence and prevention have traditionally been measured through recidivism. Studies of recidivism generally ask whether an offender has been re-arrested rather than investigating whether intimate partner violence has recurred in the relationship. But these questions might yield very different results; one study found recidivism rates of 22 percent when using official reports and 49 percent when asking victims whether there had been any new violence.²⁶ Because criminal law defines intimate partner violence primarily as physical violence and threats of physical violence, new arrests for intimate partner violence may capture only a fraction of the violence within a relationship. Using re-arrest as a proxy for re-abuse misses noncriminal forms of violence like emotional abuse that may be as or more debilitating than physical violence. Moreover, people subjected to intimate partner violence may choose not to report new offenses to police or prosecutors if their initial interactions with the criminal legal system were negative. Although recidivism can also be measured through victim report, intimate partner violence is routinely underreported, particularly when the victim does not want further involvement with formal systems. Even in Quincy, Massachusetts, a jurisdiction that aggressively enforced intimate partner violence laws, recidivism rates were high in a 1999 study, in large measure because criminalization failed to deter serious, repeat criminals from engaging in abusive behavior.²⁷

Finally, criminalization may not deter because criminal punishment fails to target the underlying causes of intimate partner violence and therefore cannot change the behavior of those who engage in it. This lack of understanding about why offenders engage in crime is a particular problem in the context of intimate partner violence. The antiviolence movement has long maintained that men abuse in order to exert power and control over their partners, building this belief into the intervention programs created to address men’s use of violence. Criminal sentences for intimate partner violence often require offenders to participate in these programs. But as pioneering advocate Ellen Pence observed shortly before her death, whether men actually intend to exert power and control, or whether power and control is instead a byproduct of abuse, is an open question. Pence noted that neither the women nor the men with whom she worked identified power and control as the goal of abuse.²⁸ Assuming that obtaining power and control is the reason men engage in intimate partner violence has preempted serious study of other potential causes of that violence, leading to ineffective interventions.

Cost-Benefit Analysis

Although criminalization and incarceration are often conflated, criminalization has its own particular set of costs. Being labeled a criminal brings both social stigma and a host of restrictions, including denial of the right to vote, ineligibility for public housing, federal welfare benefits, military service, and education grants, and barriers to finding employment. For undocumented people, convictions can result in deportation. Just being arrested for intimate partner violence can create a record that the public can easily access through online court information systems. Criminalization invites surveillance of offenders through community monitoring and probation, even if offenders are not incarcerated—and sometimes even if they are not ultimately convicted. Diversion programs and other conditions imposed in lieu of adjudication allow the state to monitor offenders’ behavior in exchange for a dismissal of charges if offenders meet enumerated conditions. But even minor infractions committed during the monitoring period can result in the imposition of more serious penalties, including incarceration.

When using incarceration as the benchmark, the costs of criminalization are exponentially higher. Not only does incarceration not deter future violence, time in prison may actually drive further offending. Incarceration creates or reinforces conditions that lead to greater recidivism: dehumanization of inmates, destruction of communities, and prevention of structural investment.

Penal facilities in the United States are dehumanizing institutions, relying upon practices of punishment and control abandoned by most developed nations. Law professor Jonathan Simon refers to U.S. penal facilities as “waste management prisons,” arguing that such facilities are not intended to transform prisoners in any way, but are meant only to warehouse criminal offenders.²⁹ Incarceration in these kinds of facilities reinforces the bitterness of those subjected to such treatment and does nothing to decrease the odds of recidivism.

Incarceration helps to explain “why ex-prisoners earn less, are employed less, and toil at ‘bad jobs characterized by high turnover and little chance of moving up the income ladder.’”³⁰ Prior to being jailed, two-thirds of male inmates are employed, and half of them serve as the primary source of support for their families.³¹ When fathers are incarcerated, family income declines by as much as 22 percent, and 65 percent of families cannot meet all of their needs.³² The children of incarcerated fathers are more likely to experience homelessness; their mothers are more likely to receive public assistance³³; and the families are more likely to live in unsupportive neighborhoods.³⁴ Upon release, formerly imprisoned men both work and earn less. Sixty percent of former prisoners experience long-term unemployment, and employed former prisoners earn 40 percent less than those who have not been incarcerated.³⁵ Having been incarcerated poses a significant impediment to finding employment for white men and a “nearly insurmountable barrier” for men of color; as few as 5 percent of African American applicants for employment with criminal records receive callbacks for interviews.³⁶ Incarceration depresses both the wages and annual income of former inmates. As criminologist Elliott Currie concludes, “[T]he experience of incarceration, especially in a society that already suffers from a hollowed opportunity structure and thin social supports, is often a disabling one that sharply reduces the number of prospects of a good job and decent earnings—and thus serves in practice to cement great numbers of former offenders into a condition of permanent marginality.”³⁷

Former inmates are frequently released into neighborhoods whose stability is undermined by the loss of their members to prison. In communities already weakened by poverty and high unemployment rates, social networks are essential in providing support. But the disappearance of significant numbers of individuals who should be raising children and contributing to the local economy saps community strength. “[T]hese ongoing removals, isolations and relocations can prove a formidable barrier to building a stable, close community in which people look out for their neighbors.”³⁸ When members of communities know less about each other, their capacity for understanding each other’s behavior decreases. Given this lack of familiarity, the community is less able to address conflicts when they occur. The state, however, is ready and willing to take these conflicts out of the community’s hands; when community relationships are frayed, the community is open to allowing the state to assume responsibility. In such communities, informal social controls are undercut, creating conditions that are ripe for violence. By ceding responsibility for conflict resolution, communities lose the opportunity to discuss and recalibrate the norms by which members of the community should live—including norms around nonviolence.

Moreover, investment in prisons diverts resources away from the economically disadvantaged communities that many offenders are released into, depriving those communities of funding for education, health care, employment assistance, housing, and other services that could benefit ex-offenders and stabilize communities. Such services are more likely to prevent further violence than doing time in a “waste management” prison.

The costs of incarceration are similarly high in the specific context of intimate partner violence. Incarceration depresses employment opportunities for former offenders. Rates of intimate partner violence correlate with male unemployment; the more often a man is unemployed, the higher the rate of violence.³⁹ Both subjective reports and objective measures of economic strain correlate with intimate partner violence.⁴⁰ Moreover, rates of intimate partner violence increase in economically disadvantaged neighborhoods, possibly as “a product of the loss of social controls in a community and the weakening of social ties. When residents have weak ties with their neighbors, they are unlikely to effectively shape social norms in the neighborhood.”⁴¹ The intersections of economics and community characteristics with intimate partner violence will be more thoroughly explored in chapters 2 and 4.

Finally, the violence that offenders experience in prison is recycled in their interpersonal relationships. The irony of incarceration is that individuals being punished for violence are sent to places where they are likely to be perpetrators or victims of, or witnesses to, violence. Up to 20 percent of prisoners have been physically abused in prison. Ten percent of state prisoners report being sexually abused. The trauma of victimization has serious consequences, including posttraumatic stress disorder (PTSD) and other mental health issues. Witnessing violence in prison can also trigger symptoms of trauma. Former prisoners bring this trauma with them into their relationships in the community, with harmful consequences; perpetration of intimate partner violence and PTSD are strongly correlated.

Moreover, as law professor Angela Harris has argued, “relying on criminal justice to punish the perpetrators of violence against women and sexual minorities in the long run perpetuates more gender violence.”⁴² Prisons reinforce and magnify the destructive ideologies that drive intimate partner violence. Prison culture reflects the values and norms of the outside society, including norms around masculinity. Inmates, like other men, often construct masculinity in opposition to the feminine or feminized. The need to be seen as powerful (and therefore not feminine) is an essential component of hegemonic masculinity. Violence against women, or those perceived as feminine, reinforces the hegemonic masculine identity. Prison violence, particularly sexual violence, is an assertion of masculinity; sexual assault demarcates the victim as “female” within the prison ecosystem. Prisoners bring problematic notions of masculinity into the prison, have experiences that further shape, warp, and reproduce those norms, and return to their communities with those ideas—a process that law professor SpearIt has called “the cycle of destructive masculinity.”⁴³ Those notions of masculinity, in turn, poison the relationships that former prisoners have in the community.

Incarceration does not help offenders to value others or create empathy—the necessary preconditions to preventing further harm. Instead, offenders report that prisons create an atmosphere where they can ignore or repress the effects of their actions on others, making future violence more likely. Decreases in empathy continue after an offender’s release from incarceration; African American men who have been incarcerated are less likely to feel empathy for family members who were currently incarcerated, suggesting that “empathetic inurement,” which may help men to survive incarceration, “follows these men back into the community.”⁴⁴

Weighed against these costs are the actual and potential benefits of criminalization. Criminalization brought significant resources to the antiviolence movement. In 1980 federal funding for programs designed to improve the legal system’s response to intimate partner violence was eliminated. The Family Violence Prevention and Services Act continued to allocate funding for shelter and social services programs, but that funding did not benefit law enforcement. With the recasting of intimate partner violence as a criminal problem through VAWA, however, millions of dollars became available to police, prosecutors, courts, and community advocacy agencies—a total of $430 million in 2015. The majority of that funding flows to the criminal legal system, primarily through VAWA’s two largest grant programs: the STOP Program and the Improving the Criminal Justice Response to Sexual Assault, Domestic Violence, Dating Violence, and Stalking Program (formerly known as the Grants to Encourage Arrests and Enforcement of Protection Orders Program). Additional funding is allocated to law enforcement through other VAWA programs (for example, through grants funding services for rural victims, college students, and marginalized communities). Antiviolence advocates receive significant amounts of funding through the criminal system provisions of VAWA as well. Encouraging collaboration between antiviolence advocates and law enforcement is an explicit goal of VAWA, and many of VAWA’s grants require the participation (and funding) of community partners. Prioritizing the criminal legal response to intimate partner violence is directly responsible for bringing millions of dollars in funding into the antiviolence movement.

The other benefits of criminalization are less tangible. Criminalization could deter an individual offender from engaging in future violence (a claim addressed above) or serve as a general deterrent by sending the message that society will not condone intimate partner violence. On the individual level, criminal laws forbidding intimate partner violence validate the experiences of people subjected to abuse by clearly and unequivocally stating that what has been done to them is wrong. Moreover, criminalization provides a process through which individuals (through the state) can pursue retributive justice and the possibility of vindication, if their claims of abuse are believed.

Criminalization could also increase safety for people subjected to abuse. To the extent that arrest incapacitates their partners, prosecution and conviction result in incarceration, or the criminal court issues an order for the offender to stay away from a person subjected to abuse, that person’s immediate safety could increase. Some people subjected to abuse believe that intervention by the criminal legal system will provide them with protection, reporting that punishments like jail time and probation give them the opportunity to put short- and long-term safety measures into place. Regardless of the sentence imposed, some people experience less fear after their partners are convicted. Although it may have no broader societal impact, individuals’ safety may be enhanced through criminalization.

If accountability is defined as ensuring that those who abuse face the prospect of punishment through the legal system, criminalization can also provide accountability. Prosecution and conviction rates for intimate partner violence have increased significantly over the last twenty years. Between 60 percent and 70 percent of arrests lead to charges, and between 25 percent and 50 percent of offenders are convicted of those charges. If convicted, somewhere between two-thirds and three-quarters of offenders are imprisoned. Those numbers are slightly misleading, because they do not include cases in which no arrest was made; when those numbers are included, the overall rates of charging, conviction, and incarceration are significantly lower. But to the extent that accountability correlates with prosecution and conviction, criminalization increases accountability, at least when police make arrests.⁴⁵

Finally, criminalizing intimate partner violence has expressive value. As law professor Danielle Citron writes,

Law creates a public set of meanings and shared understandings between the state and the public. It clarifies, and draws attention to, the behavior it prohibits. Law’s expressed meaning serves mutually reinforcing purposes. Law educates the public about what is socially harmful. This legitimates harms, allowing the harmed party to see herself as harmed. It signals appropriate behavior. In drawing attention to socially appropriate behavior, law permits individuals to take these social meanings into account when deciding on their actions. Because law creates and shapes social mores, it has an important cultural impact that differs from its more direct coercive effects.⁴⁶

The early efforts of antiviolence advocates to increase awareness and condemnation of intimate partner violence were meant to ensure that intimate partner violence would be treated as a crime like any other. Enacting new laws against intimate partner violence was an important component of that strategy. For better or worse, the social importance of intimate partner violence is measured by the level of punishment meted out for the crime; recall the widespread condemnation of the six-month sentence handed down to Brock Turner, the Stanford University student convicted of raping an unconscious woman behind a dumpster on campus in 2015. Moving away from criminalization, some fear, would signal tacit acceptance of intimate partner violence and a waning of the state’s commitment to protecting people subjected to abuse.

This analysis should also take into account how the costs and benefits of criminalization are allocated. Those who commit crimes of intimate partner violence most obviously, but not exclusively, shoulder the costs of criminalization. Those costs disproportionately fall on people of color and low-income people, who are more likely to become enmeshed in the criminal legal system and lack the resources to secure private representation or engage services that might prevent them from being incarcerated. The partners of those who abuse also bear the costs, particularly when intervention by the criminal legal system is not what the person subjected to abuse would have chosen or when they themselves are arrested and prosecuted. Children are both emotionally and economically harmed by parental involvement in the criminal legal system. Communities lose economic contributions and struggle with the weakening of societal bonds. Taxpayers subsidize the costs of arresting, prosecuting, monitoring, and incarcerating those who are subject to the criminal legal system.

Criminalization most benefits those who feel safer as a result of interventions but are immune from most of its costs: people who don’t share children with their partners, people who are no longer in relationships with those partners, people who don’t rely on their partners in any way, higher-income people. For those who equate justice with punishment by the criminal legal system, criminalization is the only means of achieving justice. Incapacitation of a violent offender (assuming conviction and incarceration) is a benefit in cases where the safety of a person subjected to abuse is imperiled by an offender who is undeterred by civil protection orders and other noncriminal interventions. Given the funding priorities in this area, criminalization also benefits law enforcement and the nonprofits who collaborate with law enforcement.

Alternatives to Criminalization

All of the theories of criminalization require proponents of criminal legislation to consider whether the state could reduce the incidence of undesirable conduct through means short of criminalization. Alternatives to criminalization are underdeveloped, making criminalization the default response to bad behavior. But given that the majority of people subjected to abuse do not seek assistance from the criminal legal system, developing alternatives to that system should be a priority for policymakers.

Currently available programs and legal solutions could partially replicate the role of criminalization—to control or deter abusive behavior. People subjected to abuse can seek civil protective orders requiring that their partners refrain from abuse or stay away and providing other forms of relief. Those who abuse may be able to access batterer intervention counseling without being ordered to do so in a criminal case, although many such programs are court affiliated.

In terms of programs designed to replace state control with community or other forms of informal social control, however, both policymakers and antiviolence advocates have been leery of experimentation. Antiviolence advocates have opposed the idea of using alternative dispute resolution in cases involving intimate partner violence. Concerns have been raised about whether such processes can be made sufficiently safe and whether they will actually hold offenders accountable for their actions. Moreover, having worked for forty years to have intimate partner violence treated as a crime, advocates are unwilling to risk diluting the power of the criminal legal response by creating parallel or alternative justice systems.

Nonetheless, alternatives to prevent and address the harms of intimate partner violence do exist. Economic interventions could relieve some of the conditions that spur intimate partner violence. If prevention is the goal, public health initiatives might serve that function more effectively than criminalization. Community-based alternatives, like restorative justice, transformative justice, community accountability, and male peer support interventions, are being used successfully in some communities and could be expanded. But criminalization hampers the development, implementation, and evaluation of these alternatives. Criminalization is the default response that policymakers and some antiviolence advocates are loath, even afraid, to abandon. And so long as funding for antiviolence efforts remains focused on the criminal legal system, criminalization will deprive efforts to develop alternatives of needed resources.

The United States has developed a robust response to intimate partner violence. That response relies heavily on the effective operation of the criminal legal system. But intervention by the criminal legal system does not deter intimate partner violence. Moreover, the costs of criminalization, particularly when intervention results in incarceration, significantly outweigh its benefits. Given those realities, a persuasive argument could be made for decriminalizing intimate partner violence.

The U.S. policy experiment with criminalization as a primary response to intimate partner violence is neither an unqualified success nor a total failure. What it has revealed is the need for a multidimensional response to intimate partner violence. Policies grounded in economics, public health, community, and human rights should all be part of that response.