Decriminalizing Domestic Violence. Leigh Goodmark
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