Decriminalizing Domestic Violence. Leigh Goodmark
movement has embraced the language of intersectionality, it has failed to work to change laws and policies on criminalization that disproportionately negatively impact low-income people, people of color, lesbians, transwomen, and other marginalized communities. Women of color and other representatives of marginalized communities have repeatedly questioned whether the policy choices made by the antiviolence movement contemplated or comprehended their unique needs, identities, and positions. Reconsidering criminalization could help us to better understand the ways in which policy choices around intimate partner violence affect various communities and, ultimately, could transform law and policy so that it better meets the needs of the most marginalized people subjected to violence.
As questions are raised about how best to address the problem of mass incarceration and as criticism of the criminal legal response to intimate partner violence increases, the time is ripe to seek alternatives to the criminalization of intimate partner violence. Some antiviolence advocates are asking whether decriminalizing intimate partner violence might be not only possible but necessary if other responses to intimate partner violence are to be explored. As law professor Angela Harris has asked, “If reliance on the criminal justice system to address violence against women and sexual minorities has reached the end of its usefulness, to where should advocates turn next?”15 The conversation about alternatives to criminalization in the context of intimate partner violence could also be part of the solution to mass incarceration. Decriminalizing domestic violence might provide a starting point for rethinking incarceration as the default response to violent crime in the United States.
This book will argue that existing research does not justify the United States’ continued investment in criminalization as the primary response to intimate partner violence. Criminalization does little to prevent intimate partner violence. What it accomplishes comes at a substantial cost. Criminalization has failed to deter intimate partner violence. The criminal legal system harms some of those it was meant to protect and exacerbates the conditions that contribute to intimate partner violence.
Chapter 1 offers a brief history of the criminalization of intimate partner violence. After considering the benefits and critiques of criminalization, the chapter asks whether criminal law theory justifies the criminalization of intimate partner violence. Chapter 1 concludes that the theoretical basis for criminalizing intimate partner violence is weak at best, and that a persuasive case could be made for decriminalizing intimate partner violence.
If not primarily a problem for the criminal system, what kind of problem is intimate partner violence? Chapter 2 argues that intimate partner violence is an economic problem, imposing substantial costs on the economy, on people subjected to abuse, and on people who perpetrate violence. The chapter examines the relationship between economics and intimate partner violence, explains how impeding access to economic resources limits the autonomy of people subjected to abuse, and explores the link between economics and perpetration of violence. Finally, the chapter considers the structural economic factors that exacerbate intimate partner violence.
Chapter 3 looks at intimate partner violence from a public health perspective. Because intimate partner violence is associated with a host of adverse health consequences, eradicating that violence has clear health benefits. The public health approach views intimate partner violence as a preventable problem and sites prevention efforts at multiple levels across the social ecology—individual, relationship, community, and societal. Chapter 3 documents primary, secondary, and tertiary prevention efforts involving engagement with men and adolescents and explains how preventing adverse childhood experiences could significantly decrease intimate partner violence. Chapter 3 concludes with a look at how population level interventions could also prevent intimate partner violence.
Chapter 4 views intimate partner violence through the lens of community, surveying the research on the relationship between community characteristics and intimate partner violence. The chapter examines the links between social supports and collective efficacy and intimate partner violence. The chapter discusses a range of community-based responses to intimate partner violence, including community organizing, community accountability, and community-based justice, and argues that community-based responses could shift societal norms around intimate partner violence and provide meaningful justice for people subjected to abuse.
In chapter 5 intimate partner violence is cast as a human rights problem. The chapter explains the legal framework of international and regional agreements governing state responses to intimate partner violence and the specific rights safeguarded by those documents. The chapter introduces the concept of due diligence, which requires governments to intervene positively to prevent, protect, prosecute, punish, and provide redress in cases of intimate partner violence and explores how that concept has been actualized in case law and policy. The chapter also considers the relationship between human rights and the criminalization of intimate partner violence and looks at how international human rights norms have been applied to intimate partner violence in the United States. Finally, the chapter argues that using a human rights lens would foster the development of multidimensional solutions to the problem of intimate partner violence.
Intimate partner violence is an economic problem, a public health problem, a community problem, and a human rights problem. And despite the fact that a strong argument can be made for decriminalizing intimate partner violence, intimate partner violence remains a criminal problem as well. Policies seeking to curb intimate partner violence must, therefore, address each of these areas (and more). Chapter 6 offers a vision of what a balanced policy approach to intimate partner violence would look like. Chapter 6 suggests new laws addressing economic abuse and programs designed to put financial power into the hands of people subjected to abuse. Using a public health framework, it argues for a shift in focus from punishment to prevention and considers the laws and policies that would undergird such a shift. Chapter 6 calls for the development of community-based alternatives both to prevent and confront intimate partner violence, reallocating responsibility for redressing violence from the state to the community. The chapter considers what tools will be necessary to inculcate human rights norms against intimate partner violence in the United States. It also advocates for a diminished role for the criminal legal system in responding to intimate partner violence, making the criminal system the response of last resort in those cases where no other measure can meet the justice needs of the person subjected to abuse and rejecting criminal policies that exacerbate intimate partner violence. Chapter 6 concludes with suggestions for starting the movement toward decriminalization.
Because intimate partner violence is a multifaceted problem, sometimes the strategies to respond to it will overlap. Economic and community-based solutions are important in and of themselves, but may also act as a form of primary prevention in the public health sense of that term. Strategies will also be mutually reinforcing. The existence of (more limited and less brutal) criminal legal interventions serves as a backstop for community accountability and community justice strategies; the criminal system should be available in situations where no other policy intervention will prevent further violence. Community-based strategies are unlikely to successfully stem intimate partner violence in low-income communities if persistent poverty and neighborhood disadvantage, which mitigate the impact of community interventions, are not addressed. Therefore, economic justice is an essential component of empowering communities. Moreover, the policy prescriptions for confronting intimate partner violence are not simple. Promising interventions will have downsides and drawbacks. Before embracing any policy initiative, we need to have a clear understanding of its benefits and detriments and assess who is helped and who is harmed by the policy.
There is no one-size-fits-all solution to the problem of intimate partner violence. Intimate partner violence law and policy should expand the range of options and solutions available to people subjected to abuse and to people who use violence, enabling them to access the supports and programs that meet their individual needs. The overreliance on criminalization tips the programmatic and policy scales in ways that are harmful to people subjected to abuse, their partners, their families, and their communities and prevents the development of a menu of options. A balanced policy approach, one that is attuned to the needs of the most marginalized